Colbert v. Ricker

• Decision Date: 02 June 1943
• Citation: Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459 (Mass. 1943)
• Parties: NORA W. COLBERT v. KATHERINE F. RICKER.
• Court: Supreme Judicial Court of Massachusetts

314 Mass. 138

49 N.E.2d 459

NORA W. COLBERT v. KATHERINE F. RICKER.

Supreme Judicial Court of Massachusetts, Middlesex.

June 2, 1943

May 7, 1943.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Negligence, One owning or controlling real estate, Invited person. Licensor Licensee, Guest. Husband and Wife. Joint Enterprise. License. Real Property, License.

A wife's permitting her husband to live in and interview his business customers in a house owned by her did not give her any proprietary interest in his business nor make her more than a gratuitous licensor toward him and customers there by his invitation, and she would not be liable to them for injuries resulting from defects existing in the premises through her ordinary negligence.

One invited by a wife to a house owned by her in order to transact with her husband business in which she had no interest was no more than a social guest on the premises and could not hold the wife liable for injuries resulting from a defect existing in the premises through her ordinary negligence.

TORT. Writ in the Superior Court dated January 2, 1940. The action was tried before Beaudreau, J., who denied a motion by the defendant for a directed verdict and, after the recording of a verdict for the plaintiff, denied a motion by the defendant for the entry of a verdict in her favor under leave reserved. The defendant alleged exceptions.

The record contained the following statement: "In answer to questions propounded by the court the defendant testified . over . . . [her] objection and exception . . . [that] she felt she had an interest in . . . [telephone calls to her house by her husband's customers] and that she felt she had an interest in the call she got on that Sunday afternoon." In her brief, the defendant argued that such testimony was "objectionable on the ground[s] that it violates the rule against opinion evidence when it is feasible for a witness to reproduce the facts of a situation," that "it involved expression of an opinion of law," and that the word "interest" was vague and indefinite.

E. J. Sullivan, for the defendant.

R.

E. McCarthy, for the plaintiff.

RONAN, J. 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 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 .

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...