Plummer v. Dill

• Decision Date: 20 May 1892
• Parties: PLUMMER v. DILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 426

31 N.E. 128

PLUMMER v. DILL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1892

COUNSEL

Bartlett & Anderson, for plaintiff.

Ball & Tower, for defendant.

OPINION

KNOWLTON J.

If we assume that it was the duty of the defendant to keep the entrance, stairway, and halls of his building reasonably safe for persons using them on an invitation, express or implied and if we further assume that he negligently permitted them to be unsafe, and that his negligence caused the injury to the plaintiff, and that she was in the exercise of due care some of which propositions are at least questionable, we come to the inquiry whether the plaintiff was a mere licensee in the building, or was there by the defendant's implied invitation. She did not go there to transact with any occupant of the building any kind of business in which he was engaged, or in the transaction of which the building was used or designed to be used. She was in search of a servant, and for her own convenience, she went there to inquire about a matter which concerned herself alone. It has often been held that the owner of land or a building, who has it in charge, is bound to be careful and diligent in keeping it safe for those who come there by his invitation, express or implied, but that he owes no such duty to those who come there for their own convenience, or as mere licensees. Sweeny v. Railroad Co., 10 Allen, 368; Gordon v. Cummings, 152 Mass. 513, 25 N.E. 978; Metcalfe v. Steamship Co., 147 Mass. 66, 16 N.E. 701. One who puts a building or a part of a building to use in a business, and fits it up so as to show the use to which it is adapted, impliedly invites all persons to come there whose coming is naturally incident to the prosecution of the business. If the place is open, and there is nothing to indicate that strangers are not wanted, he impliedly permits and licenses persons to come therefor their own convenience, or to gratify their curiosity. The mere fact that premises are fitted conveniently for use by the owner or his tenants, and by those who come to transact such business as is carried on there, does not constitute an implied invitation to strangers to come and use the place for purposes of their own. To such persons it gives no more than an implied license to come for any proper purpose. It is held in England that one who comes on an express invitation to enjoy hospitality as a guest must take the house as he finds it, and that his right to recover for an injury growing out of dangers on the premises is no greater than that of a mere licensee. Southcote v. Stanley, 1 Hurl. & N. 246. The principle of the decision seems to be that a guest who is receiving the gratuitous favors of another has no such relation to him as to create a duty to make safer or better than it happens to be the place where hospitality is tendered. It is well settled there that to come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant. Poll. Torts, 417; Holmes v. Railroad Co., L.R. 4 Exch. 254, L.R. 6 Exch. 123; White v. France, 2 C.P.Div. 308; Burchell v. Hickisson, 50 Law J.Q.B. 101. The rule in regard to an implied invitation to places of business is held with equal strictness in New York. In Larmore v. Iron Co., 101 N.Y. 391, 4 N.E. 752, it was decided that a person who entered on the defendant's premises to see if the defendant would give him employment was a mere licensee, and that the defendant was not liable to him for an injury caused by the unsafe condition of the place. The diligence of counsel, and an extended examination of the authorities, have failed to bring to our attention any case in which the owner or occupant of a place fitted up for ordinary use in business has been held, by the condition of his premises, impliedly to invite persons to come there for a purpose in which the occupant had no interest, and which had no connection with the business actually or apparently carried on there. Precisely how far, under all circumstances, an implied invitation extends, in reference to the persons included in it, has not been the subject of very full consideration in this commonwealth, and is hardly capable of exact statement. But in many cases there is language indicating that the invitation extends only to those who come on business connected with that carried on at the place, and for the transaction of which the place is apparently intended. In Severy v. Nickerson, 120 Mass. 306, Mr. Justice DEVENS says: "There is no duty imposed upon an owner or occupant of premises to keep them in a suitable condition for those who come there for their own convenience merely, without any invitation, either express, or which may fairly be implied from the preparation and adaptation of the premises for the purposes for which they are appropriated." In Marwedel v. Cook, 154 Mass. ----, 28 N.E. 140, we find this language: "The general duty which the defendant owed to third persons in respect to the...