Iandoli v. Donnelly , 332 Mass. 601 ( 1955 )

332 Mass. 601 (1955) 127 N.E.2d 190

DANIEL IANDOLI
vs.
MARY J. DONNELLY & others.

Supreme Judicial Court of Massachusetts, Suffolk.

October 6, 1954. June 2, 1955.

Present: QUA, C.J., LUMMUS, WILKINS, WILLIAMS, & COUNIHAN, JJ.

Albert W. Wunderly, for the defendants.

Mary W. Fidler, for the plaintiff.

LUMMUS, J.

In this action of tort for negligence there was evidence tending to prove the following. The defendants owned a billboard mounted on the roof of a building in Somerville owned by the plaintiff's mother in which the plaintiff operated a tavern. On September 11, 1950, the face of the billboard fell on the automobile of the plaintiff which was parked near the building, damaging the automobile to the extent of $198. The insurer of the plaintiff's automobile paid him $198, and took from him an assignment of "each and all claim and demands" against all persons arising from the damage to the automobile. The insurer then brought this action in the name of the plaintiff.

There was evidence that on the day of the accident the wind reached a velocity of fifty-seven miles an hour, but that no other billboard of the three thousand billboards owned by the defendants was blown down. The judge found that the defendants were negligent, and awarded the plaintiff $198. The judge refused to rule, as requested by the defendants, that the plaintiff had failed to prove negligence. The Appellate Division dismissed a report, and the defendants appealed.

There was evidence, we think, of negligence on the part of the defendants. On the day in question, the billboard was subjected to a wind which, though high, could have been found to be no higher than ought to have been anticipated and guarded against, and which all the other three thousand billboards of the defendants withstood. That it blew down was some evidence of some defect in its construction. Navien v. Cohen, 268 Mass. 427, 431. Proof of the exact nature of the defect was not required. Melvin v. Pennsylvania Steel Co. 180 Mass. 196, 202. Navien v. Cohen, 268 Mass. 427, 431. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234, 235. Ryder v. Robinson, 329 Mass. 285, 287. Since negligence of the defendants could have been found, there was no error in refusing their requested ruling that no negligence on their part had been proved.

The ownership of the billboard by the defendants and its recent inspection by them warranted the inference that it was in their control. Nothing in the record suggests that any other person had any interest in or control of it.

The assignment to the insurer was not of part of a claim,^[1] but of "each and all claim and demands" against any alleged wrongdoer. It does not appear that any claim existed other than that for the injury to the automobile. See Hart v. Western Rail Road, 13 Met. 99, 105-106; Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44, 46.

Order dismissing report affirmed.

NOTES

[1] The judge denied a ruling requested by the defendants that the "assignment under which the ... [insurer] brings this action is a partial assignment of Iandoli's cause of action against the defendants; is invalid at law and because of its invalidity, the plaintiff cannot recover against the defendants." — REPORTER.