Colbert v. Ricker

• Decision Date: 02 June 1943
• Citation: 314 Mass. 138,49 N.E.2d 459
• Parties: COLBERT v. RICKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 138

49 N.E.2d 459

COLBERT

v.RICKER.

Supreme Judicial Court of Massachusetts, Middlesex.

June 2, 1943.

Exceptions from Superior Court, Middlesex County; R. Beaudreau, Judge.

Action by Nora W. Colbert against Katherine Ricker for personal injuries. Verdict for plaintiff, and defendant excepts.

Exceptions sustained.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

R. E. McCarthy, of Boston, for plaintiff.

E. J. Sullivan, of Boston, for defendant.

RONAN, Justice.

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 possesion 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, 22 N.E. 921,5 L.R.A. 664;Southworth v. Edmands, 152 Mass. 203, 25 N.E. 106,9 L.R.A. 118;Kirchgassner v. Rodick, 170 Mass. 543, 49 N.E. 1015.

The plaintiff came to the defendant's house solely to transact business with Ricker. The defendant, however, had no financial or proprietary interest in that business even though as a wife she would naturally be interested in the commercial success of her husband. Such an interest would arise from the intimate relations existing between husband and wife. Permitting him to use her house in conducting his business did not make her a joint adventurer in the business or give her any proprietary interest therein. The loan by a wife of her automobile to her husband, a physician, to assist him in making professional calls, gave her no pecuniary interest in his profession and in regard to him she stood as a bailor of the automobile. Nash v. Lang, 268 Mass. 407, 167 N.E. 762.

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, 29 N.E. 62,52 Am.Rep. 698;Oxford v. Leathe, 165 Mass. 254, 43 N.E. 92;Schofield v. Wood, 170 Mass. 415, 49 N.E. 636;Shrigley v. Boston Symphony Orchestra, Inc., 287 Mass. 300, 191 N.E. 420;Orcutt v. Signouin, 302 Mass. 373, 22 N.E.2d 18. But the defendant was a gratutious licensor and was not liable for injuries sustained by one on her premises at the invitation of her husband. Karlowski v. Kissock, 275 Mass. 180, 183, 184, 175 N.E. 500. See Ansara v. Skaff, 259 Mass. 197, 156 N.E. 29;Baker v....