314 Mass. 138 | Mass. | 1943
The plaintiff, the owner of a house in Somerville which was in need of repairs, telephoned on Sunday noon to her daughter, the defendant, who was married and lived in Arlington with her husband, one' Ricker, a general contractor, and inquired of her daughter if she could see him in regard to making repairs on her house. The defendant, after talking with Ricker, told the plaintiff to come over and that Ricker would see her. The plaintiff arrived at the home of her daughter and, after talking to her a few minutes, she then conferred with Ricker with reference to the conditions of various parts of her property that she wished to have attended to by him. He suggested that he drive her home and look over the property. While the plaintiff was preparing to leave with him, the heel of her shoe caught in a broken register, which was one of the outlets of the heating system and formed a part of the surface of the floor, and she was thrown to the floor with such force that she sustained a broken hip. The defendant owned the house and knew and assented to the practice of her husband meeting customers there and transacting business with them. We have recited the material facts that a jury could find from the evidence. The jury returned a verdict for the plaintiff. The case is here upon the exceptions of the defendant.
The principal contention of the defendant is that she did not stand in such relationship to the plaintiff as would impose any duty upon her to exercise care to keep her premises reasonably safe for the use of the plaintiff.
The defendant was the owner and could at any time have taken exclusive possession herself. She was not bound to furnish her husband with a home, and she was not required to permit him to use her premises for his own personal business. That she allowed him to do so did not give him any interest in her property or make him a tenant. We think that he was occupying the property as a licensee. Plaisted v. Hair, 150 Mass. 275. Southworth v. Edmands, 152 Mass. 203. Kirchgassner v. Rodick, 170 Mass. 543.
The plaintiff, whatever her rights might be against the husband, cannot claim through him and base a cause of action against the defendant on the defendant’s negligence in failing to keep the premises reasonably safe for the plaintiff’s use. The defendant is not shown to have had any such obligation to her husband. As a member of the family, the husband, as a licensee of his wife, took the premises as he found them. A licensor who has been paid a consideration by a licensee for the use of the premises owned by the licensor is bound to exercise care to keep the premises in a reasonably safe condition for the contemplated use by those who are invited there by the licensee. Currier v. Boston Music Hall Association, 135 Mass. 414. Johnson v. Wilkinson, 139 Mass. 3. Oxford v. Leathe, 165 Mass. 254. Schofield v. Wood, 170 Mass. 415. Shrigley v. Boston Symphony Orchestra, Inc. 287 Mass. 300. Orcutt v. Signouin, 302 Mass. 373. But the defendant was a gratuitous licensor and was not liable for injuries sustained by one on her premises as a business invitee of her husband. Karlowski v. Kissock, 275 Mass. 180, 183, 184. See Ansara v. Skaff, 259 Mass. 197; Baker v. Hurwitch, 265 Mass. 360; Brosnan v. Koufman, 294 Mass. 495.
The plaintiff’s visit in so far as the defendant personally was concerned was for the convenience, pleasure and benefit of the plaintiff. Metcalfe v. Cunard Steamship Co. 147
The defendant, in answer to an inquiry by the judge but subject to her exception, testified that “she felt she had an interest” in the telephone calls made to her house by customers of her husband including the telephone call from the plaintiff. There was no error. It is plain that what she was testifying to was her mental attitude toward her husband’s customers and her willingness to assist him by answering the telephone. She did not testify to anything that would indicate that she had a proprietary or pecuniary right in his business.
Exceptions sustained.
Judgment for the defendant.