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plaintiffdefendantdamagestriallease

plaintiffdefendanthearingtrial

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Delano v. Smith, 206 Mass. 365, 92 N.E. 500, 30 L.R.A.N.S. 474

Facts

The plaintiff, Delavan C. Delano, was the mortgagee of a property in Everett that included a house with three tenements, a store, and a stable. The defendants, acting as the board of health, leased the property from the mortgagor to use as a contagious hospital for smallpox patients without the plaintiff's knowledge. During the lease period, 42 individuals were treated for smallpox, resulting in 6 deaths, and the plaintiff was unaware of the lease until several months after it began.

The plaintiff was the mortgagee of certain real estate in that city, the buildings upon which consisted of one house of three tenements and a store and a stable.

Issue

The main legal issue was whether the jury could find that waste had been committed by the defendants in their use of the property as a smallpox hospital.

The fundamental question, therefore, is whether upon the facts agreed it was permissible for the jury to find that waste had been committed.

Rule

The court applied the principle that waste is an unreasonable or improper use of real estate by one in possession, resulting in substantial injury, and that a mortgagee has the right to maintain an action for injury to the property regardless of possession.

Under the conditions prevailing in this Commonwealth waste is an unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession which results in its substantial injury.

Analysis

The court analyzed whether the defendants' actions constituted waste by considering the impact of using the property as a smallpox hospital. It noted that the presence of disease germs could materially change the property's condition and that the jury could find that such use was unreasonable and improper, leading to a substantial injury to the plaintiff's interest in the property.

The possibility of germination of the disease germs which, it might have been found, were deposited through the action of the defendants within the house in question was or might have been found to be waste, unless it is shown that they can be removed by disinfection or otherwise without material physical change in the building, so as to make it as safe for residence as before.

Conclusion

The court concluded that the judgment should be for the plaintiff for the damages assessed by the jury unless the superior court decided that a new trial was warranted.

Hence the entry should be: Judgment for the plaintiff for the sum found by the jury, unless within 60 days from the filing of the rescript the justice of the superior court before whom the trial occurred shall decide after hearing that under these circumstances justice requires a new trial and enter an order to that effect.

Who won?

The prevailing party is the plaintiff, Delavan C. Delano, as the court ultimately ordered judgment in his favor for the damages found by the jury.

Judgment ordered for plaintiff, unless new trial be granted by the superior court.

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