Hashim v. Chimiklis
| Decision Date | 24 June 1941 |
| Citation | 21 A.2d 166 |
| Parties | HASHIM v. CHIMIKLIS. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Lorimer, Judge.
Action of case for personal injuries by Joseph Hashim against George A. Chimiklis. A jury returned a verdict for plaintiff. Motions for nonsuit, for directed verdict, and to set aside the verdict were denied, and defendant brings exceptions.
Judgment on the verdict.
Action of case, to recover damages for personal injuries sustained by the plaintiff as a result of his attempt to use a toilet in defendant's place of business. Trial by jury with view resulting in verdict for plaintiff. During the trial defendant seasonably moved for nonsuit and directed verdict, and after verdict moved to have the verdict set aside as against the law and the evidence. These motions were denied and defendant excepted.
The facts are as follows: Plaintiff went into defendant's place of business to sell him some vegetables. After the transaction was completed, the following transpired:
Frederick O'Connor, of Manchester, for plaintiff.
Albert Terrien, of Nashua, for defendant.
The first question that arises is whether the plaintiff is a licensee or invitee. We are of the opinion his status was that of a licensee. A licensee is one who is privileged to enter or remain on and use the premises of another by virtue of the latter's consent, whether by invitation or permission, and it is immaterial whether the consent which creates the license is an invitation, or a permission given upon request made by the licensee. The distinction between licensee and invitee is that a gratuitous licensee is any licensee other than a business visitor. Restatement, Torts, §§ 330, 331. Use of the premises for one's own personal benefit is what makes the user a licensee; while if the premises are used for the common interest and mutual advantage of both the user and owner, by invitation expressed or implied, the user then becomes an invitee. 37 C.J. 161; 45 C.J. 788, s. 194; 25 Words and Phrases, Perm.Ed, p. 192.
The duty owed by the owner or possessor of premises to a licensee is to give him reasonable information as to existing dangerous conditions, not open to his observation, of which the owner knows or should know. The licensee has the right to rely on a warning of risks which he may not, by the exercise of reasonable care, be expected to discover. Restatement, Torts, § 342; Locke v. Payne, 81 N.H. 266, 124 A. 658; Tullgren v. Amoskeag Mfg. Company, 82 N.H. 268, 272, 133 A. 4, 46 A.L.R. 380.
Plaintiff, after transacting his business with the defendant, asked and received permission to use a toilet located in the rear of the store. The evidence is in conflict as to what really happened. Plaintiff says he was directed by the defendant's clerk, at the defendant's instruction, to where the toilet was, and proceeded thereto. Plaintiff says the toilet was in the dark; defendant contradicts this. Comment on the testimony as to which version is correct is unnecessary. It was for the jury to find who was to be believed. Plaintiff says as he stepped in the toilet his right foot went through a hole in the floor where a board was missing. He could see the floor and the top of the bowl just faintly. He says he received no warning of any danger incident to the use of the toilet, and the only warning defendant claims he gave plaintiff was to be careful because the entrance to the toilet was narrow and the toilet itself small. So that it is a findable fact, if not uncontroverted, that no efficient warning was given of any defect in the floor.
It now remains to determine whether defendant knew or should have known of the existing dangerous condition of the floor. Plaintiff says after the accident he asked defendant why he didn't fix the flooring inside, and defendant replied he could not afford it. Later plaintiff returned to defendant's store and talked with a clerk, who he pointed out as being present in the court room, who told plaintiff, "it was a shame he [defendant] didn't fix that"; "we are used of that so that we can go without a light, we knew the floor was like that". The evidence was admitted without objection. This man took the stand and denied any such conversation. The jury...
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...but against trespassers the landowner should have known of. Mitchell v. Railroad, 68 N.H. 96, 34 A. 674 (1894). Hashim v. Chimiklis, 91 N.H. 456, 21 A.2d 166 (1941), holding that a business invitee who asked to use the toilet became a licensee and Sandwell v. Elliott Hospital, 92 N.H. 41, 2......
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...2. New Hampshire substantive law is more favorable to Brogie's position than that of Massachusetts. See Hashim v. Chimiklis, 91 N.H. 456, 457, 21 A.2d 166, 167 ('The duty owed by the owner * * * of premises to a license is to give him reasonable information as to existing dangerous conditio......
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...right to rely on a warning of risks which he may not, by the exercise of reasonable care, be expected to discover." Hashim v. Chimiklis, 91 N.H. ___, 21 A.2d 166, 167, 168. In the absence of such a warning, the licensee does not take "the premises as he finds them." Locke v. Payne, 81 N.H. ......
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...premises, except to warn of dangers actually known by the defendant and not open to ordinary observation by the plaintiff. Hashim v. Chimiklis, 91 N.H.——, 21 A.2d 166; Locke v. Payne, 81 N.H. 266, 124 A. 668. Since the icy condition and its attendant dangers were fully observable and fully ......