Comeau v. Comeau

• Decision Date: 28 March 1934
• Citation: 285 Mass. 578,189 N.E. 588
• Parties: COMEAU v. COMEAU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 578

189 N.E. 588

COMEAU

v.COMEAU.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1934.

Appeal from District Court of East Boston, Appellate Division; Lane, Judge.

Action of tort by Elizabeth Comeau against Leomine Rose Comeau. There was a finding for plaintiff in the sum of $400, and the case was reported to the appellate division of the district court for determination on an agreed statement of facts, and, from an order of the appellate division vacating the finding for plaintiff and ordering judgment for defendant, plaintiff appeals.

Affirmed.

H. Goldberg, of Boston, for appellant.

W. Rosnosky, of Boston, for appellee.

RUGG, Chief Justice.

The plaintiff seeks by this action of tort to recover compensation for injuries received by her on property owned and occupied by the defendant. The case was reported by the trial judge to the appellate division for determination on an agreed statement of facts in accordance with St. 1931, c. 325, §§ 1 and 2 (see St. 1931, c. 426, §§ 116, 119; see now G. L. [Ter. Ed.] c. 231, § 108, lines 70 to 74 inclusive). Thus it appears that the plaintiff, in the exercise of due care, while passing from the street to the dwelling of the defendant on an ‘outstanding and implied invitation to visit’ her ‘for social purposes, on the date in question’ was caused injuries by broken concrete in the passageway owned by the defendant, which had been in the same condition for many years through her negligence to keep it in a safe condition for such use. The stated issue is whether the plaintiff must establish gross negligence in order to recover. Finding was made for the plaintiff in the sum of $400. It was stipulated by the parties that, if the plaintiff is required to establish gross negligence, finding is to be entered in favor of the defendant; otherwise, finding for the sum stated is to be entered in favor of the plaintiff. In the appellate division the finding for the plaintiff was vacated and judgment ordered in favor of the defendant. The appeal of the plaintiff brings the case here.

The question is whether a social guest may recover damages for injuries caused by ordinary negligence of the host in the care of the home, or whether something more, termed for convenience gross negligence, must be established as a basis of liability. For the distinction between ordinary negligence and gross negligence see Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185. There is nothing in the present record to indicate that the condition of the concrete passageway involved an unreasonable risk and was not readily discoverable and avoidable by one using the passageway with reasonable circumspection.

Allusion to this question has been made in several of our cases, but it has never been decided. In Plummer v. Dill, 156 Mass. 426, 427, 31 N. E. 128, 129,32 Am. St. Rep. 463, the court said, speaking through Knowlton, J.: ‘It is held in England that one who comes on an express invitation to enjoy hospitality as a guest must take the house as he finds it, and that his right to recover for an injury growing out of dangers on the premises is no greater than that of a mere licensee. Southcote v. Stanley, 1 Hurl. & N. 247. The principle * * * seems to be that a guest who is receiving the gratuitous favors of another has no such relation to him as to create a duty to make safer or better than it happens to be the place where hospitality is tendered.’ This language was used in reaching the conclusion that a plaintiff visiting a building of the defendant in search of a servant could not recover for injuries caused by the defective conditionof the building because she did not go there for the transaction of business for which the building was used or designed, or with any tenant engaged in the occupation of furnishing servants. By the same reasoning it was held in Hart v. Cole, 156 Mass. 475, 477, 31 N. E. 644,16 L. R. A. 557, that one attending a wake as one of the general public stood no better than a mere licensee and could not recover for personal injuries sustained by the defective condition of the approach to the premises. It was there said at page 478 of 156 Mass.,31 N. E. 644, 645, quoting with approval from Campbell on Negligence: ‘A guest must take the premises as he finds them, with any risk owing to their disrepair, although the host is bound to warn his guest of any concealed danger upon the premises known to himself.’ In West v. Poor, 196 Mass. 183, 185, 81 N. E. 960,11 L. R. A. (N. S.) 936, 124 Am. St. Rep. 541, is a strong implication that an invited guest whose enjoyment is promoted by the host is entitled only to the rights of a licensee so far as concerns the conditions of the premises. Other decisions in England more recent than that of Southcote v. stanley, 1 H. N. 247, support the conclusion that an ordinary guest in a dwelling house has no greater rights with respect to the condition of the premises than a licensee. Indermaur v. Dames, L. R. 1 C. P. 274; Tolhausen v. Davies, 57 L. J. (N. S.) 392.

There are several well considered decisions in courts of other jurisdictions reaching the conclusion that, where a guest is invited to come upon the premises of his host for social or benevolent purposes, the relation created is not that of invitee and invitor in a business sense but that of licensee or licensor. In such circumstances the host as licensor is held to be under no liability unless the proximate cause of injury to the guest is something in the nature of a trap or active negligence. Greenfield v. Miller, 173 Wis. 184, 180 N. W. 834, 12 A. L. R. 982;Mitchell v. Raymond, 181 Wis. 591, 599, 195 N. W. 855;Morril v. Morril, 104 N. J. Law, 557, 142 A. 337, 60 A. L. R. 102;Pearson v. Mallory S. S. Co. (C. C. A.) 278 F. 175. So far as we are aware there are no decisions to the contrary.

After full discussion and mature deliberation, with exhaustive review of the authorities, this court speaking through Loring, J., held in Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, that a guest riding gratuitously in the motor vehicle of the defendant at his invitation could not recover compensation for personal injuries caused by its negligent operation, but must establish gross negligence in its operation in order to prevail. That decision, in our opinion, governs the case at bar in principle....