McKay v. Morgan Mem'l Co-Op. Indus. & Stores

• Decision Date: 01 July 1930
• Citation: 172 N.E. 68,272 Mass. 121
• Parties: McKAY v. MORGAN MEMORIAL CO-OP. INDUSTRIES AND STORES, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 121

172 N.E. 68

McKAY

v.MORGAN MEMORIAL CO-OP. INDUSTRIES AND STORES, Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1930.

Exceptions and Report from Superior Court, Middlesex County; James H. Sisk, Judge.

Action by Margaret McKay against the Morgan Memorial Co-operative Industries and Stores, Incorporated. A verdict was directed for defendant, and plaintiff brings exception. On report.

New trial ordered.

P. Sherman, of Boston, for plaintiff.

J. H. Gilbride, of Lowell, for defendant.

FIELD, J.

This is an action of tort to recover damages for personal injuries to the plaintiff alleged to have been caused by the negligence of the defendant, a corporation, its agents, servants and employees, by reason of which the plaintiff fell through a trap door on the defendant's premises. The defendant answered by a general denial and by alleging that the plaintiff was not in the exercise of due care, that the defendant was a charitable corporation and ‘that the business conducted by it was solely for the purpose of carrying out the charitable objects set forth in its charter of incorporation and not for any private profit.’ The trial judge on motion of the defendant ‘directed a verdict for the defendant on the ground that the defendant was a charitable corporation, and, therefore, not liable to the plaintiff in damages,’ and the plaintiff excepted. The judge reported the case on the terms that if this ruling was erroneous there is to be a new trial, otherwise, ‘judgment is to be entered on the verdict.’ The report brings before us also rulings, to which the plaintiff excepted, excluding evidence offered by her and denying her motion to strike out certain matter in the defendant's answer to a notice to admit facts.

The evidence tended to show that the plaintiff, being, by the invitation of the defendant and for the purpose of purchasing an article of clothing, on premises in Somerville, occupied by the defendant for the sale of articles of clothing and other merchandise, fell through a trap door in the floor, of which no warning was given her, and was injured. No contention is made now that there was not ‘evidence warranting a verdict for the plaintiff if the defendant was subject to the ordinary rules of liability.’ See Donnelly v. Boston Catholic Cemetery Association, 146 Mass. 163, 166, 15 N. E. 505; See also Grogan v. O'Keefe's, Inc., (Mass.) 166 N. E. 721;Kennedy v. Cherry & Webb Co. Lowell (Mass.) 166 N. E. 562.

1. It was error to direct a verdict for the defendant on the ground that it was a charitable corporation since the evidence did not warrant a ruling as matter of law that on this ground the defendant was not ‘subject to the ordinary rules of liability.’

Even if the assumption is made that the defendant was a charitable corporation, it was not on that account free from liability for negligence if the negligence occurred in the conduct of business for profit, though such business, because incidental to the corporate powers, was not ultra vires the corporation, and the proceeds thereof were applied wholly to its charitable purposes. Holder v. Massachusetts Horticultural Society, 211 Mass. 370, 97 N. E. 630. See Nims v. Mount Hermon Boys' School, 160 Mass. 177, 180, 35 N. E. 776,22 L. R. A. 364, 39 Am. St. Rep. 467;Foley v. Wesson Memorial Hospital, 246 Mass. 363, 366, 141 N. E. 113;Enman v. Trustees of Boston University (Mass.) 170 N. E. 43. The distinction is between activities primarily commercial in character carried on to obtain revenue to be used for charitable purposes, as in Holder v. Massachusetts Horticultural Society, supra, where there is liability for negligence, and activities carried on to accomplish directly the charitable purposes of the corporation, incidentally yielding revenue, as in Conklin v. John Howard Industrial Home, 224 Mass. 222, 112 N. E. 606, where there is no liability for negligence. Compare Mount Hermon Boys' School v. Gill, 145 Mass. 139, 147-149, 13 N. E. 354.

The evidence tended to show that the premises in question were occupied by the defendant as one of eight or nine stores operated by it in the vicinity of Boston. The defendant's treasurer testified that the activities of the defendant, described ‘in a general way,’ consisted of ‘a children's settlement, a home for homeless men and for middle-aged working women, a farm for fresh air children, and industries which gave employment to persons who are handicapped and temporarily out of employment.’ Two classes of people were employed-‘those who * * * carry on the work and oversee it, and others selected from the welfare or employment bureau who are simply given temporary relief. The latter class if they are able * * * are put to work in * * * workshops as are other persons who are sent to them by other social agencies; * * * after investigation if a man needs to be lifted over a hard place, he is given...