Fitzsimmons v. Hale

• Decision Date: 04 March 1915
• Parties: FITZSIMMONS v. HALE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 461

107 N.E. 929

FITZSIMMONS v. HALE (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1915

COUNSEL

Jas P. Magenis, John Wentworth, and Thos. C. O'Brien, all of Boston, for plaintiffs.

Dickson & Knowles, of Boston, for defendant.

OPINION

CROSBY J.

These were two actions of tort. The first is brought to recover for personal injuries received by the plaintiff, and the second brought by the husband of the first plaintiff, is to recover for amounts expended by him for medical attendance medicines, and the nursing of his wife. Where the plaintiff is referred to it is understood as applying to the female plaintiff.

It is admitted by the defendant that she was 'in control of the building numbered 193A Massachusetts avenue'; that she 'leased out certain numbers of said building numbered as aforesaid, and reversed to herself the care and control of the common stairways in said building and the steps or stairs leading thereto; that there was evidence of the due care of the plaintiff, Mary T. Fitzsimmons, and of the defendant's negligence as to persons rightfully on the stairs or steps in permitting the stairs or steps upon which the plaintiff was injured to remain in a defective condition; and that the plaintiff, Mary T. Fitzsimmons, was injured.'

This stairway led up to the rear entrance of a meat market of one Magee, who was a tenant of the defendant, and to the floors above. The main entrance to this market was on Massachusetts avenue. The plaintiff, who was employed in a laundry in the building adjoining that of the defendant, left the laundry by the rear door, crossed the area behind these buildings, and ascended the common stairway at the rear of the meat market. After making some purchases in the market, she came out, and while descending the stairs was injured by the breaking of one of the steps. The tenant occupied as a tenant of will, and paid rent from month to month.

There was evidence to show that in the spring of 1910 the tenant Magee put up a canvas sign on the building, near the rear entrance of his store; that it was there with the knowledge of the defendant, and afterwards was blown down. It does not appear how long the sign was up, or that the plaintiff ever saw it or knew of its existence. Still, if the sign was maintained at the rear entrance of the meat market, that was evidence having some tendency to show an invitation on the part of the tenant to the public to enter and leave the market by means of the rear entrance. The weight of this evidence was for the jury. Fogarty v. Bogart, 43 A.D. 430, 60 N.Y.S. 81. We do not mean to intimate that the maintenance of a sign upon a building is always evidence of an invitation to enter the building. It is common knowledge that signs frequently are placed upon buildings solely for advertising purposes, under such circumstances as to be apparent that no invitation to enter the premises in a particular way could be inferred.

There was further evidence to show that from the beginning of Magee's tenancy to the date of the accident, which occurred in July, 1910, several persons went to and came from the market daily (except on Sundays) by means of the rear entrance, and that such persons, including both men and women, made purchases in the market.

The plaintiff testified that she had 'seen, for the last four or five years, ladies and gentlemen going in and out making purchases, going in the rear way and coming out the rear way'; that some days she had seen six or seven, some days three or four, and some days two, and some days nine or ten. She further testified:

'I thought I could use the same advantage what they did.' 'I did it for short.'

There was evidence from one Hannah Scannell that she had seen customers go in and out of Magee's store by this rear entrance for the past seven years.

Magee, the tenant, testified 'that there was no special agreement with Mrs. Hale or her agent' as to the use of the two doors (front and rear); 'nothing was said about it;' and that 'at no time since I have been there has there been any restriction of people coming in the rear way if they chose to,' and 'a very small percentage came in the back way; that percentage was more or less regular; it had continued since I had been there.'

Magee also testified on his direct examination that 'I never solicited patronage in that way,' meaning by the rear door; but on re-direct examination he testified not only that he never refused to wait on anybody because they came in by the rear door, but 'I had a sign there, I think it was in the spring of 1910. It was a canvas sign. It was a light affair and it finally blew down; the reading of the sign was my name and 'Provisions had Groceries."

Putting up this sign and evidence that customers had been coming in and out of the rear door daily from the beginning of his tenancy would have warranted a finding that there was an invitation on the part of Magee to his customers to use the rear door in coming to trade at his meat market.

The next question presented is: Did the tenant have the right as against the landlord to invite customers to use the rear door and the common stairway which was reserved for the use of the different tenants? As was pointed out by Loring, J., in Domenicis v. Fleisher, 195 Mass. 283, 81 N.E. 192:

'There are a number of cases in this commonwealth in which a member of the tenant's family has been allowed to recover for a negligent act of the landlord. Looney v. McLean, 129 Mass. 33 ; Andrews v. Williamson, 193 Mass. 92 [78 N.E. 737, 118 Am. St. Rep. 452]. * * * There are also cases where one who has come on the leased premises on business with the tenant has been held to be entitled to recover for negligence on the part of the landlord under circumstances under which the tenant would have been entitled to recover. Wilcox v. Zane, 167 Mass. 302 ; O'Malley v....