Aragona v. Parrella

• Decision Date: 03 April 1950
• Citation: 91 N.E.2d 778,325 Mass. 583
• Parties: ARAGONA et al. v. PARRELLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 583

91 N.E.2d 778

ARAGONA et al. v. PARRELLA.

Supreme Judicial Court of Massachusetts, Norfolk.

April 3, 1950

Argued Jan. 5 1950.

M. H. Kramer Boston, for plaintiff.

R. W. Cornell Boston, for defendant.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

COUNIHAN, Justice.

This action of tort is here on the plaintiffs' exception to the direction by the judge of a verdict for the defendant after the opening statement of counsel for the plaintiffs. The plaintiffs are husband and wife. The action arises out of personal injuries sustained by the wife in a fall on the defendant's premises on September 29, 1942. There were counts for negligence and gross negligence by the wife, and counts for consequential damages by the husband. Since the rights of the husband depend on those of the wife, we shall hereinafter refer to her as the plaintiff.

After counsel for the plaintiff made his opening, there was a discussion between him and the judge regarding the facts counsel had stated he intended to prove, at the end of which the judge asked counsel if he had stated all the facts on which he intended to rely and counsel replied that he had. Thereupon the judge directed a verdict for the defendant.

A directed verdict for the defendant upon the opening statement is proper if the statement of counsel, treated as facts, together with all reasonable inferences of which those facts are susceptible, cannot, upon any reasonable view of those facts and inferences, be deemed sufficient to support the plaintiff's cause of action. The facts set forth in the opening must be considered as true and in the light most favorable to the plaintiff. If the opening plainly fails to show a cause of action, a directed verdict may be ordered. The power to dispose of a case on the opening must be exercised cautiously and only when it is apparent that the plaintiff cannot supply evidence necessary to establish his case. Passler v. Mowbray, 318 Mass. 231, 61 N.E.2d 120; Douglas v. Whittaker, 324 Mass. 398, 399-400, 86 N.E.2d 916, and cases cited.

There was no error in directing a verdict for the defendant because the facts stated in the opening would not warrant a verdict for the plaintiff. It appears from the opening that the plaintiff proposed to prove that sometime prior to July 31, 1942, the defendant sought a mortgage from the plaintiff to assist him in the purchase of the premises where the plaintiff sustained her injury and as a result the plaintiff, who was familiar with mortgage transactions, inspected the premises. Because the second floor was occupied by a tenant, she was unable to see it and the defendant agreed that, after he moved in, the plaintiff could view this floor. The deed to the defendant and a mortgage in statutory form from the defendant to the plaintiff were executed on July 31, 1942, and the money secured by the mortgage was then paid. 'As the result of several conversations they had between July 31, 1942, and September 29, they did agree on a time that Mrs. Aragona would be able to go to Brookline and see these premises, and under that arrangement she agreed to go. They welcomed her, asked her to come, and in addition to that invited Mrs. Aragona to have dinner there that night, and these people had been friendly prior to July 31.' The plaintiff with a nine or ten year old niece went to the premises occupied by the defendant at about 6 P.M. on September 29, 1942. She sat in the kitchen with the defendant and others. After she had been there a short time she asked to be directed to the washroom, and the defendant said: 'Walk out into the hall, and the first door on the right, or the door on the right is the bathroom door.' This apartment had a long hall which ran from the extreme front to the extreme rear of the house. The kitchen was in the back part of the house on the left-hand side as one walked from the front to the rear. The hall extended beyond the kitchen and 'this door' (through which she fell) was on the right leading from the hall beyond the kitchen. There were no lights in the hall. She went into the hall, opened a door which swung outward, took a step at the threshold and her foot went down, causing her to fall about twenty steps. She had been...