Folsom v. Goodwin

• Decision Date: 02 January 1940
• Citation: 10 A.2d 666
• Parties: FOLSOM v. GOODWIN et al. SAME v. GOODWIN.
• Court: New Hampshire Supreme Court

10 A.2d 666

FOLSOM

v. GOODWIN et al.

SAME

v. GOODWIN.

Supreme Court of New Hampshire. Hillsborough.

Jan. 2, 1940.

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

Two actions on the case, for negligently causing the death of plaintiff's intestate, by Mary P. Folsom, administratrix, against Eva Goodwin, and by the same party plaintiff against Charles D. Barnard, and Leon C. Goodwin. Verdict for plaintiff in both cases, and cases transferred on defendants' exceptions.

Judgments for the defendants.

Two actions on the case, for negligently causing the death of the plaintiff's intestate. A trial by jury resulted in verdicts for the plaintiff.

The decedent, Alice Lavoia, was killed when the decayed railing of an outside platform on the rear of the second-floor tenement in which she lived gave way and precipitated her to the ground below. The building in which this tenement was located formerly belonged to one George Goodwin who several years before the accident died intestate leaving a widow, the defendant Eva, and one son, the defendant Leon. At the time of the decedent's injury and death Eva was insane and confined in the State Hospital and Leon was under the conservatorship of the defendant Barnard. After the accident, but before these actions were instituted, Leon died intestate and the defendant Barnard was appointed to administer his estate. During the same interval Barnard was appointed guardian of Eva. Her dower rights have never been set off.

The tenement in which Alice lived at the time of her fall had formerly been occupied by her sister, the defendant Eva, but upon the committal of the latter to the State Hospital Alice and another sister Julia moved into it. The evidence is conflicting as to whether the defendant Barnard knew of their occupancy at the time when they moved in or did not discover it until some months later. They never paid any rent, but Julia assisted in the management of the property by collecting rents, finding tenants and supervising repairs. Alice was employed in a local factory and every week gave all her wages to Julia who ran the household and supervised all of their expenditures of every sort.

The defendants excepted to the denial of their motions for nonsuits and directed verdicts, to the admission and exclusion of evidence, to portions of the argument on behalf of the plaintiff and to the charge. They also excepted to the denial of their motion to set the verdicts aside as against the law, the evidence and the weight of the evidence. Decision on their motions to set the verdicts aside as excessive was reserved pending consideration of their other exceptions by this court.

Such further facts as are material are stated in the opinion.

McLane, Davis & Carleton, of Manchester (John P. Carleton, of Manchester, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Ralph E. Langdell, of Manchester, orally), for defendants.

WOODBURY, Justice.

It is unnecessary to consider whether Alice was herself a tenant or whether Julia was the tenant and Alice occupied the tenement as a guest, boarder or member of her sister's family. The reason for this is that even though Alice was not the actual tenant she was at least occupying with the tenant's permission, and as such her "rights in regard to injuries received from defects in the premises are governed by the same rules and are subject to the same limitations as the tenant's." Towne v. Thompson, 68 N.H. 317, 44 A. 492, 493, 46 L.R.A. 748. The fundamental question presented is one of duty. It is whether or not the landlord was under any obligation to use due care to see that the platform...