Aldworth v. F.W. Woolworth Co.
| Citation | 295 Mass. 344,3 N.E.2d 1008 |
| Parties | ALDWORTH v. F. W. WOOLWORTH CO. |
| Decision Date | 09 September 1936 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Exceptions from Superior Court, Worcester County; Dowd, Judge.
Action of tort by Robert E. Aldworth against F. W. Woolworth Company. On plaintiff's exceptions to verdict directed for defendant.
Exceptions overruled.
A. J Young, of Worcester, for plaintiff.
D. F Gay, of Worcester, for defendant.
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff in falling from a fire escape attached to a building occupied by the defendant. The bill of exceptions states that the ‘ declaration is in two counts, both alleging that the plaintiff was lawfully on the premises in the performance of his duty as a fireman, the first alleging that the defendant was negligent in allowing the fire escape to be in a defective, decayed, unsuitable and unsafe condition, which condition was then and there known to the said defendant or might have been known to it by exercise of proper care and diligence; the second count alleging that the defendant was negligent in allowing the fire escape to be in a defective, unsafe, and dangerous condition for lack of good repair and not ready for use.’ No contention is made that the evidence did not warrant findings that the accident occurred and that the plaintiff sustained personal injuries. It was agreed that ‘ at the time of the accident the plaintiff was engaged in his employment as a private in the fire department of the City of Worcester acting under orders of his superior officer in fighting a fire in a building * * * separated by a twelve foot passageway from the building occupied by the defendant * * * [and] that the premises so occupied were used for mercantile purposes with more than ten employes employed therein.’ The judge ruled that ‘ in this case the defendant owes no duty to the plaintiff except to refrain from wilful and wanton injury and to abstain from retaining on his premises any pitfalls or traps,’ and ‘ on that ruling’ ordered a verdict for the defendant. The ‘ plaintiff duly excepted to the ruling of the Court in ordering a verdict for the defendant.'
There was no prejudicial error.
The direction of a verdict for the defendant, if right under the pleadings, cannot be reversed since it must be taken that the judge acted with the declaration before him and in view of its averments. Brasslavsky v. Boston Elevated Railway, 250 Mass. 403, 404, 145 N.E. 529; Auburn State Bank v. National Laundry Co., 289 Mass. 397, 194 N.E. 306. The first count of the declaration, at least, is based on negligence. The plaintiff contends, however, that the second count is based on a violation of G.L.(Ter.Ed.) c. 143, § 21. The declaration clearly does not allege wilful, wanton or reckless conduct on the part of the defendant.
1. The evidence did not warrant a verdict for the plaintiff on the ground of negligence. There was evidence that the building occupied by the defendant was leased to the defendant and that the fire escape alleged to have been defective was attached to the outside of the easterly wall of the building. We assume, without deciding, that it could have been found that this fire escape was in the possession and control of the defendant. There was, however, no evidence that the plaintiff was on the fire escape by invitation, express or implied, of the defendant. Compare Learoyed v. Godfrey, 138 Mass. 315, 323. Whatever right or privilege he had to be one the fire escape was by virtue of the fact that as a fireman employed by the city and acting under orders of his superior officer he was engaged in fighting a fire in a nearby building. Clearly it could have been found that the plaintiff was not a trespasser. The privilege of a fireman to enter upon premises in the circumstances shown is in the nature of a limitation by reason of public necessity on the rights of the possessor of such premises. See Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277, 280,12 Am.Rep. 689; Inhabitants of Hyde Park v. Gay, 120 Mass. 589, 593; Parker v. Barnard, 135 Mass. 116, 117, 46 Am.Rep. 450. See, also, Wynn v. Sullivan (Mass.) 3 N.E.(2d) 236. In the aspect of the evidence most favorable to the plaintiff his entry upon the premises was by virtue of such a privilege conferred by law-or, as it might be described, a permission implied by law from the facts shown-and constituted him a licensee. See Brennan v. Keene, 237 Mass. 556, 561, 130 N.E. 82, 13 A.L.R. 629; Brosnan v. Koufman (Mass.) 2 N.E.(2d) 441, 104 A.L.R. 1177; Wynn v. Sullivan (Mass.) 3 N.E.(2d) 236. The question here raised as to the rights of firemen has not been decided previously by this court. But the conclusion reached is in accord with statements with respect to firemen in our opinions ( Creeden v. Boston & Maine Railroad, 193 Mass. 280, 283, 79 N.E. 344,9 Ann.Cas. 1121,Brosnan v. Koufman (Mass.) 2 N.E.(2d) 441, 104 A.L.R. 1177) and is supported by decisions-which are not distinguishable-with reference to police officers. Brennan v. Keene, 237 Mass. 556, 130 N.E. 82, 13 A.L.R. 629; Wynn v. Sullivan (Mass.) 3 N.E.(2d) 236. See, also, Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450. And the conclusion is supported by decisions in other jurisdictions. Pennebaker v. San Joaquin Light & Power Co., 158 Cal. 579, 112 P. 459,31 L.R.A.(N.S.) 1099, 139 Am.St.Rep. 202; Lunt v. Post Printing & Publishing Co., 48 Colo. 316, 110 P. 203,30 L.R.A.(N.S.) 60,21 Ann.Cas. 492; Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182,17 L.R.A. 588, 36 Am.St.Rep. 376; Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113,22 L.R.A. 198; Beehler v. Daniels, Cornell & Co., 18 R.I. 563, 29 A. 6,27 L.R.A. 512, 49 Am.St.Rep. 790. See cases collected in note, 13 A.L.R. 638. See, also, Cooley on Torts (4th Ed.) § 440, vol. 3, p. 198; Harper on Torts, § 96. So far as the case of Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633, is in conflict with what is here decided we cannot follow it.
Apart from any statute, the plaintiff, entering upon the premises in question as a licensee, cannot recover on the ground of negligence but must show wilful, wanton or reckless conduct. O'Brien v. Union Freight Railroad, 209 Mass 449, 452, 95 N.E. 861,36 L.R.A.(N.S.) 492; Murphy v. Boston & Maine Railroad, 248 Mass. 78, 82, 142 N.E. 782; Partridge v. United Elastic Corp., 288 Mass. 138, 144, 192 N.E. 460. The plaintiff contends, however, that the evidence warranted a finding that the defendant violated G.L.(Ter.Ed.) c. 143, § 21, and that such violation was evidence of negligence. This section provides in part that ‘ any building in which ten or more persons are employed in a * * * mercantile * * * establishment * * * shall be provided with proper egresses or other means of escape from fire sufficient for the use of all persons accommodated, assembled, employed, lodged or resident therein,’ and that the ‘ egresses and means of escape shall be kept unobstructed, in good repair and ready for use.’ G.L.(Ter.Ed.) c. 143, § 53, provides a criminal penalty for violation of this section. And G.L.(Ter.Ed.) c. 143, § 51, provides that a person who ‘ owns * * * or controls the use’ of a building mentioned in section 21‘ shall be liable to any person injured for all damages caused by a violation’ of the provision of that section. But this contention of the plaintiff, if sound, would not warrant a verdict for him on the ground of negligence. The statute does not transform a licensee into an invited person or create a libility for negligence where, as here, no such liability exists apart from the statute. Palmigiani v. D'Argenio, 234 Mass. 434, 125 N.E. 592; Garland v. Stetson (Mass.) 197 N.E. 679; Wynn v. Sullivan (Mass.) 3 N.E.(2d) 236.Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450, so far as inconsistent with this conclusion, must be regarded as overruled by these cases. If the plaintiff has any cause of action by force of the statute it is wholly statutory and...
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