Collins v. Croteau
| Decision Date | 28 January 1948 |
| Citation | 322 Mass. 291,77 N.E.2d 305 |
| Parties | COLLINS v. CROTEAU et ux. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; J. C. Donnelly, Judge.
Action by Denige Collins against Leon J. Croteau and wife, to recover for injuries sustained in fall on defendant's premises. The judge directed a verdict for defendants, and plaintiff brings exceptions.
Exceptions sustained.
Before QUA, C. J., and LUMMUS, DOLAN, RONAN and WILKINS, JJ.
F. D. Casey, of Worcester, for plaintiff.
M. J. Rubin and J. C. McDonald, both of Worcester, for defendants.
The defendants owned, as tenants by the entirety, certain premises on Aldrich Place in Worcester, upon which was an apartment building having a basement, the entrance to which was reached from a walk which led to the street. The plaintiff, who was engaged in doing general housework, while travelling along this walk on October 6, 1944, in order to keep an appointment with the female defendant for the purpose of going with the latter to the home of both defendants to do some housework, stepped into one of the holes or ruts which had existed for months and fell, breaking her leg. She brought a single action against the husband and the wife, and the judge subject to her exception directed a verdict for the defendants.
The defendant husband, as tenant by the entirety, was entitled to the exclusive possession and control of the premises and to the rents and profits. He had many of the usual incidents of ownership which the wife could not exercise during his lifetime. Indeed, the usufruct of the property was his alone. The respective rights of the husband and the wife in property which they own as tenants by the entirety have been fully discussed in recent opinions of this court, and what was there said need not be repeated. Licker v. Gluskin, 265 Mass. 403, 164 N.E. 613, 63 A.L.R. 231;MacNeil v. MacNeil, 312 Mass. 183, 43 N.E.2d 667;Pineo v. White, 320 Mass. 487, 70 N.E.2d 294. It is stated in the bill of exceptions that the defendants owned and were in control of the property. The defendant wife, however, was not entitled to exercise such control, in her own right, merely because she was a tenant by the entirety, and the acquisition of the right to control with her husband must have resulted from some arrangement with him by which he delegated to her authority to exercise control of the premises in his behalf. He could appoint her his agent to care for and have supervision of the property. Smith v. Smith, 313 Mass. 687, 48 N.E.2d 920;Cobuzzi v. Parks, 315 Mass. 199, 51 N.E.2d 965;Gordon v. O'Brien, 320 Mass. 739, 71 N.E.2d 221. The wife in exercising control was acting as his agent. There was evidence that she had charge of cleaning the apartments in the Aldrich Place property, hereinafter called the apartment property, and at times had women, including the plaintiff, assist her in this work. She also let apartments and collected the rents. The visit of the plaintiff had nothing to do with the apartment property. We agree with the defendants that the plaintiff has not shown that the defendant wife, as agent of her husband in the care and control of the apartment property, had by virtue of such agency authority to extend in behalf of her husband an invitation to the plaintiff to come upon the property for the purpose of meeting the defendant wife concerning a matter having no connection with this property. Norris v. Hugh Nawn Contracting Co., 206 Mass. 58, 91 N.E. 886, 31 L.R.A.,N.S., 623, 19 Ann.Cas. 424;Wojcik v. Cadillac Berkshire Co., 256 Mass. 317, 152 N.E. 326;Marston v. Boston Publishing Co., 271 Mass. 307, 171 N.E. 466;Coulombe v. Horne Coal Co., 275 Mass. 226, 175 N.E. 631;Kowalczyk v. Murphy, 295 Mass. 551, 4 N.E.2d 310;Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647;Little v. Levison, 316 Mass. 159, 55 N.E.2d 17.
There was, however, evidence of the existence of another agency upon the part of the wife, separate from and independent of the agency just mentioned. She lived with her husband in Shrewsbury. It was to the home of the defendants to help Mrs. Croteau with the dusting and cleaning that the plaintiff intended to go with Mrs. Croteau after she met the latter for this purpose upon the apartment property. The plaintiff had done work for Mrs. Croteau before the accident, was familiar with her home, and had been paid by Mrs. Croteau for her work. The testimony of Mr. Croteau, that he know that the plaintiff had done housework for his wife, might have been considered by the jury as referring to work performed not only at the apartment property but also at his home, or it might have been understood as referring to the apartment property alone. Mr. Croteau was a practising attorney. It would not be unreasonable to assume that his wife, in accordance with the common practice where a married woman lives with her husband in their own home, had charge of his household and had the authority usually possessed by the wife to supply the home with food and other ordinarily necessary household articles, and to secure domestic services to aid her in maintaining the home in a suitable and proper condition for occupancy consistent with the station in life of the parties. It could be found that Mrs. Croteau had authority to hire the plaintiff-in this instance for only a part of a day-to do housework at the home of the defendants. Alley v. Winn, 134 Mass. 77, 79,45 Am.Rep. 297;Vaughan v. Mansfield, 229 Mass. 352, 356, 118 N.E. 652;Jordan Marsh Co. v. Hedtler, 238 Mass. 43, 45, 130 N.E. 78;Groce v. First National Stores Inc., 268, Mass. 210, 213, 167 N.E. 308; Mechem, Agency, 2d Ed., § 162. If Mrs. Croteau had authority in behalf of her husband to hire the plaintiff, the fixing of a meeting place with the plaintiff could be found to be a mere detail, incidental to carrying out her duties as agent for him. Denny v. Riverbank Court Hotel Co., 282 Mass. 176, 184 N.E. 452;Lord v. Lowell Institution for Savings, 304 Mass. 212, 23 N.E.2d Sokoloski v. Splann, 311 Mass. 203, 40 N.E.2d 874;Dennehy v. Jordan Marsh Co., 321 Mass. 78, 71 N.E.2d 758;Peay v. Reidy, 321 Mass. 455, 73 N.E.2d 737.
Negligence of the wife while acting as agent of her husband in securing domestic services for the upkeep of their home presented an issue of fact. The invitation to the plaintiff to meet Mrs. Croteau in the basement of the apartment property involved the use of the passageway which led to the basement. It was the duty of Mrs. Croteau, who extended this invitation, to see that this way was reasonably safe for the use of the plaintiff, or at least to warn her of dangers which the plaintiff in the exercise of reasonable care might not discover and of which Mrs. Croteau knew or ought to have known. Kuhlen v. Boston & Northern Street Railway Co., 193 Mass. 341, 79 N.E. 815, 7 L.R.A.,N.S., 729, 118 Am.St.Rep. 516;Powers v. Old Colony Street Railway Co., 201 Mass. 66, 87 N.E. 192;Kelley v. W. D. Quimby & Co., Inc., 227 Mass. 93, 116 N.E. 409;Rouillard v. Canadian Klondike Club, Inc., 316 Mass. 11, 54 N.E.2d 680;Staples v. Pond Club, Inc., 319 Mass. 238, 65 N.E.2d 419.
Contributory negligence of the plaintiff was an affirmative defence to be pleaded and proved by the defendants. The accident happened at 10:30 A.M. in the morning. There was evidence that she was not familiar with the way, and that she could see the passageway ‘but it isn't very bright.’ It could be found that she was walking in the ordinary manner and was looking straight ahead. It could not be ruled that she was...
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