Douglas v. Hollis

• Decision Date: 01 May 1934
• Citation: 172 A. 433
• Parties: DOUGLAS v. HOLLIS.
• Court: New Hampshire Supreme Court

172 A. 433

DOUGLAS

v. HOLLIS.

Supreme Court of New Hampshire. Hillsborough.

May 1, 1934.

Transferred from Superior Court, Hillsborough County; Woodbury, Judge.

Action by James E. Douglas against one Hollis. Case transferred by agreement of parties on defendant's exceptions, to be treated as though plaintiff had obtained verdict.

New trial ordered.

Case, to recover for personal injuries sustained by the plaintiff on the evening of May 7, 1930, when he fell into an unguarded passageway leading to the cellar of a school-house owned by the defendant town. Trial by jury. The defendant excepted to the denial of its motion for a directed verdict and to the exclusion of certain evidence.

During a recess taken at the close of the evidence, certain events occurred which led the presiding justice to find "that a fair trial could not thereafter be had." Thereupon the parties agreed that the case might be transferred to this court on the defendant's exceptions and here treated as though the plaintiff had obtained a verdict.

The following facts are undisputed: The defendant leased to the Hollis Lodge of Odd Fellows the third floor of the schoolhouse in question, retaining control of the rest of the premises. On the night of the accident certain members of the Nashua Lodge of Odd Fellows, including the plaintiff, visited the Hollis Lodge as invited guests. The accident occurred after the meeting was over and while the plaintiff was walking toward the place where the car in which he expected to ride home was parked.

The defendant town is "a single district for school purposes." Pub. Laws c. 119, § 1. Further facts are stated in the opinion.

Ivory C. Eaton, of Nashua, for plaintiff. John R. Spring, of Nashua, for defendant.

MARBLE, Justice.

Although a municipal corporation is not liable for injuries caused by the negligent performance of a governmental duty (Harris v. Salem School District, 72 N. H. 424, 57 A. 332; Piasecny v. City of Manchester, 82 N. H. 458, 136 A. 357, and cases cited), yet, where it acts in a private capacity for compensation, it is responsible for the negligence of its agents precisely as though it were a private corporation or an individual engaged in a similar enterprise (Town of Meredith v. Fullerton, 83 N. H. 124, 128, 129, 139 A. 359; Hening's Digest, p. 1029; annotation, 64 A. L. R. 1546).

This.' latter rule is subject of course to the qualification that the private business in which the municipality engages must be within the scope of its corporate powers. When the act complained of lies wholly outside those powers, corporate liability is not imposed. 4 Dillon, Mun. Corp. (5th Ed.) §§ 1647, 1648.

While it is often difficult "to distinguish between a total want of power to engage in an enterprise" and "unlawful minor acts within a general corporate power" (14 Cornell Law Quarterly, 351, 353), no such difficulty is here involved, since in this jurisdiction the right of a municipality to lease parts of a public building not needed for municipal purposes is unquestioned. Town of Meredith v. Fullerton, 83 N. H. 124, 127, 139 A. 359, and cases cited. See, also, Pub. Laws, c. 122, § 22. That the lease to the lodge in the present case was "incident and subordinate to" the general purpose for which the schoolhouse was maintained is reasonably to be inferred from the evidence. Curtis v. Portsmouth, 67 N. H. 506, 508, 39 A. 439.

The problem presented therefore is merely that of a landlord's obligation to keep in reasonably safe condition that portion of the premises retained in his possession and maintained or held open by him for the use of the tenant and his invitees. Rowe v. Ayer & Williams, Inc., 86 N. H. 127, 164 A. 761, and cases cited.

The cellarway into which the plaintiff fell is referred to in the record and briefs as a bulkhead or runway. It was in fact an outer passageway or ramp extending from the cellar door near the northeast corner of the building up to the level of the driveway. It哦 was several feet deep at the point where the plaintiff fell and was open and unrailed. The retaining walls were of cement. The entrance to the school and lodge rooms was situated south of this passageway and on the same side of the building. It comprised a flight of five or six steps and a piazza. The bottom step was approximately in line with the cement curb which marked the east end of the passageway. Wheel tracks shown by the photographs used at the oral arguments indicate that cars were driven close to this curb.

Lodge meetings were held each week, and members of the lodge and their guests were accustomed to park their cars along the east and north sides of the building near the cellarway. On the night of the accident the plaintiff, stepping out of the driveway to avoid an automobile, walked between the driveway and the building toward his car and fell into the deep end of the passageway. The car was parked on the north side of the building, headed east, and in line with the corner of the schoolhouse. Parking as "a recognized and common" practice (Reed v. Nashua Buick Company, 84 N. H. 156, 159, 147 A. 898) is not confined to highways, and the parking of ears in the yard on nights when the lodge rooms were open was naturally to be expected. According to the photographs, the yard was a rough schoolyard open to travel in all directions. The ground in front of the piazza and between the piazza and the cellarway was bare of grass. There was nothing to mark the boundary...