Deacy v. Mcdonnell

• Decision Date: 05 April 1944
• Citation: 131 Conn. 101,38 A.2d 181
• Court: Connecticut Supreme Court
• Parties: DEACY v. McDONNELL et al.

131 Conn. 101

38 A.2d 181

DEACY

v.McDONNELL et al.

Supreme Court of Errors of Connecticut.

April 5, 1944.

Appeal from Superior Court, Fairfield County; Booth, Judge.

Action by Catherine Deacy against Hubert McDonnell and others to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, brought to the superior court and tried to the court. From a judgment for plaintiff, defendants appeal.

No error.

Walter T. Walsh, of New Haven, for appellants.

H. Allen Barton, of Greenwich, for appellee.

Before MALTBIE, C. J., JENNINGS, DICKENSON, and BROWN, JJ., and WYNNE, Superior Court Judge.

MALTBIE, Chief Justice.

On December 31, 1938, in the evening, the plaintiff went to call upon her sister, a domestic servant in the home of the defendants. The visit was made in this sister's bedroom on the second floor of a portion of the defendants' house which was used as servants' quarters. The plaintiff left the room some time after 9:30 at night. The lights on the first floor and porch of the building were not lighted. In passing through a door to the porch she fell, owing to her failure to realize that there was a step down from the doorway to the floor of the porch. She brought this action to recover damages for the injuries she suffered and recovered judgment, from which the defendants have appealed.

The finding, with one correction to which the defendants are entitled, presents these additional facts material to the issues before us: On the night in question, the defendants were not at home; the butler and his wife had also gone out; and the plaintiff's sister, the cook and the defendants' young son were the only persons in the house. The defendants had left the house in the charge and custody of the two servants. The cook had turned out all the downstairs lights at about 9:15, under instructions from Mrs. McDonnell to do this when she went upstairs. The cook, in her room across the hall, heard the plaintiff's voice in her sister's room; both the plaintiff's sister and the cook knew of her presence; and while the cook did not know when the plaintiff left, her sister must have known. On four previous occasions the plaintiff had visited her sister in the servants' quarters of the house. It is the custom and general rule in the employment of household servants that they have the privilege of having social visitors in their quarters during their leisure hours; this custom was fully understood and accepted by the defendants; and their servants habitually exercised the privilege.

The trial court concluded: The plaintiff was, as regards the defendants, an invitee; the premises were not in a reasonably safe condition for her when she left, because of the failure to have the entrance lighted; the premises were in the custody and control of the servants in the house, and they were bound to take all precautions to prevent danger to her that the law imposed on the defendants; they were negligent in failing to turn on the rights or warn her of the danger from the step at the door when they knew that otherwise she would have to grope her way out in the dark; and she was not guilty of contributory negligence. Much of the argument before us has been addressed to the conclusion of the trial court that the plaintiff was an invitee. Even if we assume for the purposes of this decision that, as the defendants claim, she was a licensee, the other conclusions of the trial court are sufficient to sustain the judgment, and its ruling that she was an invitee may be disregarded. Eastern Oil Refining Co. v. Court of Burgesses, 130 Conn. 606, 611, 36 A.2d 586.

The general rule is that ‘A landowner is under no duty to refrain from using his premises in any way he sees fit because he has permitted another to go upon them as his licensee, even though thereby conditions are created which cause danger of injury to the licensee’; Olderman v. Bridgeport-City Trust Co., 125 Conn. 177, 182, 4 A.2d 646, 648; and that ‘An owner of land ordinarily owes no duty to a licensee, any more than he does to a trespasser, to keep his premises in a safe condition, because the licensee or trespasser must take the premises as he finds them and assumes the risk of any danger arising out of their condition.’ Hayes v. New Britain Gas Light Co., 121 Conn. 356, 357, 185 A. 170, 171. When, however, the presence of a licensee upon the property of another becomes known to the owner, the latter may owe to him a duty not to subject him to danger. In most of our cases where we have held that to be so, the injury resulted from the defendant engaging in some activity in the exercise of which the plaintiff might be endangered. Pomponio v. New York, N. H. & H. R. Co., 66 Conn. 528, 538, 34 A. 491, 32 L.R.A. 530, 50 Am.St.Rep. 124; Pigeon v. Lane, 80 Conn. 237, 241, 67 A. 886, 11 Ann.Cas. 371; Kalmich v. White, 95 Conn. 568, 571, 111 A. 845; Dickerson v. Connecticut Co., 98 Conn. 87, 91, 118 A. 518; Voltz v. Orange Volunteer Fire Assn., Inc., 118 Conn. 307, 309, 172 A. 220; Hayes v. New Britain Gas Light Co., supra; Olderman v. Bridgeport-City Trust Co., supra; Restatement, 2 Torts, § 341. But the owner of premises may also be under a duty to warn a licensee of whose presence he becomes aware, of dangerous conditions which the owner knows but which he cannot reasonably assume that the licensee knows or by a reasonable use of his faculties would observe. Ward v. Avery, 113 Conn. 394, 396, 155 A. 502; see Mersey Docks & Harbour Board v. Proctor, [1923] A.C. 253, 274; Herold v. P....