Smith v. August A. Busch Co. of Mass.

Decision Date05 January 1953
Citation329 Mass. 615,109 N.E.2d 843
PartiesSMITH v. AUGUST A. BUSCH CO. OF MASSACHUSETTS, Inc. SMITH v. ORT'S BAR & GRILL, Inc.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Timothy J. Murphy, Boston, for plaintiff.

Stuart C. Rand, Charles F. Choate and Jerome E. Andrews, Jr., Boston, for Ort's Bar & Grill, Inc.

Thomas H. Mahony, Boston, for August A. Busch Co.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

RONAN, Justice.

The plaintiff was injured as he entered the side door of the premises of the defendant Ort's Bar & Grill, Inc., hereinafter called Ort, and fell through a trap door in the floor, the cover to which had been removed by the employees of the defendant August A. Busch Company of Massachusetts, Inc., hereinafter called Busch, in the course of delivering goods. The plaintiff had a verdict against each defendant, but the judge under leave reserved and subject to the exceptions of the plaintiff entered verdicts for the defendants. The defendants excepted to the admission of certain evidence, to the denial of requests for instructions, and to portions of the charge. All these exceptions are presented in a consolidated bill of exceptions.

Ort's premises were located at the corner of Essex Street and Hersey Place where it conducted a restaurant, served liquor, and provided entertainment for its patrons who numbered about ten thousand a week. One entrance to this establishment was set diagonally in the building at the corner of Essex Street and Hersey Place and besides there were two other entrances on Essex Street. A side door was located on Hersey Place at a distance of about fifty-five feet from Essex Street. All these four doorways led into the large room where Ort conducted its business. This side door was covered with steel and swung out into Hersey Place when opened. It had no handles on the outside and when shut it could not be opened from the outside. There were no signs on or about the outside of this door. A bar ran along the inside of the Hersey Place wall and extended to within three feet of this side door. About a foot inside the threshold of this door was an iron cover three feet wide and four feet long that covered a hole in the floor which was used for the delivery of goods to the cellar.

The plaintiff accompanied by another went along Hersey Place on the afternoon of July 5, 1949, to the side door which was open. They intended to purchase beer at Ort's. The plaintiff stepped in and fell through the trap door into the cellar. The cover had been removed by the employees of Busch who at the time of the accident were in the cellar putting into the refrigerator fifty cases of beer which they had put through the trap door. One Bergman, the assistant manager of Ort's, had assisted these employees to barricade the three inside edges of the cover before the cover had been removed by an employee of Busch. The evidence was conflicting as to whether barriers had been placed on the Hersey Place side of the side door. If there was a lack of barriers on the outside of this side entrance that fact was plainly visible from the inside of Ort's and also from the cellar.

The defendants contend that in using this side door which was open for the purpose of receiving goods the plaintiff was not a business visitor. There was evidence that this door was frequently opened during warm weather but not in the winter months, and that it was convenient for those customers who desired quick service at the bar. There was testimony from one customer that she had used this side door five or six times in all within a period of eighteen months; that she entered through this door in her visit in the latter part of June, 1949, and she was then in Ort's for about an hour; that during this time several persons entered by this door; that she had seen fifty or more persons come in that way during all her visits to Ort's; and that the manager was 'on the floor' while people were using this entrance. Another customer testified that during a visit in June, 1949, she came in from the Hersey Place door and while at Ort's she saw about fourteen persons use this side doorway; and that from the previous September she had been to Ort's four times and while there on all these occasions she saw sixty or seventy people using this side door. The plaintiff, who with a companion was entering the place for the purpose of purchasing some beer, had used the side door twenty-five times during the year previous to the accident; he used this doorway fifteen times during the preceding three months and in that period he had seen seventy-five people entering and thirty-five persons leaving by this door. There was no evidence that the defendant Ort ever objected to the use of this door by its customers. There was evidence that the manager of Ort's was 'on the floor' at times when customers used the side entrance. All of this evidence relative to the use of this doorway pervious to the time of the accident was admitted subject to the exceptions of the defendants. They excepted to the denial of motions to strike out all this evidence. They also excepted to a portion of the charge in which the jury were instructed that they could consider the extent that the side entrance was used by customers of Ort, and that if the use was such that the managers and employees of Ort knew or ought to have known of this use, then this was one of the factors they could consider in determining whether the plaintiff was a business visitor.

This evidence was compentent to show that Ort had knowledge of the use of this side door by its customers, that it did not object to such use but that it treated them and traded with them the same as customers who came in by the front entrances, and it also tended to show that persons, like the plaintiff, who were acquainted with the use of this door when it was open, were reasonably led to entertain a belief that they were impliedly invited to use it in entering and leaving the premises on the frequent trips which they made for the purpose of transacting business with Ort of the kind and character which it conducted upon the premises. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co., 97 Mass. 361, 371. Fitzsimmons v. Hale, 220 Mass. 461, 164, 107 N.E. 929; Mikkanen v. Safety Fund National Bank, 222 Mass. 150, 154, 109 N.E. 889; Rice v. Rosenberg, 266 Mass. 520, 524, 165 N.E. 667; Silva v. Henry & Close Co., 279 Mass. 334, 336, 181 N.E. 228; LeBlanc v. Atlantic Building & Supply Co., Inc., 323 Mass. 702, 703, 84 N.E.2d 10; Johnston v. De La Guerra Properties, Inc. 28 Cal.2d 394, 170 P.2d 5. Eklund v. Kapetas, 216 Minn. 79, 11 N.W.2d 805. The evidence was sufficient to warrant a finding by the jury that the plaintiff as a customer was impliedly invited by Ort to use this side door when it was open, as a convenient means of ingress and egress. Drennan v. Grady, 167 Mass. 415, 45 N.E. 741; Grogan v. O'Keeffe's, Inc., 267 Mass. 189, 166 N.E. 721; O'Brien v. Harvard Restaurant & Liquor Co., Inc., 310 Mass. 491, 493-494, 38 N.E.2d 628.

These cases are distinguishale from MacGillivray v. First National Stores, Inc., 326 Mass. 678, 96 N.E.2d 159, where that portion of the premises where the plaintiff was injured was obviously not a part of the store where customers were invited to go, and from McCarthy v. Waldorf System, Inc., 251 Mass. 437, 146 N.E. 663, where the plaintiff was not a business visitor and was injured by coming to the place of the accident not by any invitation of the defendant.

Ort next contends that Busch was acting as an independent contractor in delivering the beer and that its exception should be sustained to that part of the charge where the jury were told that if the plaintiff was a business visitor of Ort the latter would not be relieved of the duty which it owed the plaintiff merely because Busch was doing the work. It also excepted to a denial of a request for an instruction that, if the plaintiff's injury was due to a failure of Busch properly to safeguard the opening to the cellar, Ort would not be liable.

If we assume that Busch was acting as an independent contract and that the work in which it was engaged was not in herently dangerous, Whalen v. Shivek, 326 Mass. 142, 93 N.E.2d 939, see Pannella v. Reilly, 304 Mass. 172, 23 N.E.2d 87--a matter which we need not...

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  • Warner v. Florida Jai Alai, Inc., 38722
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    ...Also see Reilly v. 180 Club, Inc., 14 N.J.Super. 420, 82 A.2d 210, (1951); Smith v. August A. Busch Co. and Smith v. Ort's Bar and Grill, 329 Mass 615, 109 N.E.2d 843 (1953); Lipscomb v. Coppage, 44 Ill.App.2d 430, 197 N.E.2d 48 In the case Sub judice, we conclude it was a factual question ......
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    ...186, 120 S.W. at 3, 22 L.R.A., N.S., at 1047; Trautloff v. Dannen Mills, Mo.App., 316 S.W.2d 866, 874(11); Smith v. August A. Busch Co. of Mass., 329 Mass. 615, 109 N.E.2d 843, 846; Eklund v. Kapetas, 216 Minn. 79, 11 N.W.2d 805, 807(4); see also Denison v. Wiese, 251 Iowa 770, 102 N.W.2d 6......
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