Statkunas v. Louis Promboim & Son, Inc

• Decision Date: 25 February 1931
• Citation: 174 N.E. 919,274 Mass. 515
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: STATKUNAS v. LOUIS PROMBOIM & SON, Inc., et al.

274 Mass. 515

174 N.E. 919

STATKUNAS

v.LOUIS PROMBOIM & SON, Inc., et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 25, 1931.

Exceptions from Superior Court, Middlesex County; A. R. Weed, Judge.

Action by Mary Statkunas against Louis Promboim & Son, Inc., and others. The action was discontinued as to the defendants Louis Promboim and Jacob Promboim. Verdict for the plaintiff, and the defendant corporation brings exceptions.

Exceptions overruled.

E. M. Shanley, of Boston, for plaintiff.

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

WAIT, J.

The plaintiff was injured by falling into an unguarded elevator well in a building, which was owned by Jacob and Louis Promboim, and was leased by them to a corporation, L. Promboim & Son, Inc. The plaintiff was a tenant in a neighboring building, also owned by Jacob and Louis Promboim. She brought suit in tort making the corporation and the individuals. Jacob and Louis Promboim defendants; and alleging that the defendants as owners of the building in which she was a tenant and as owners or lessees of a factory building in the rear maintained a clothesline from the first to the second building; that she received permission from the defendants to enter, and entered the factory building for the purpose of untangling the clothesline, and ‘as a result of the negligent, careless and reckless care, management and conduct by the defendants of the factory building she sustained severe injuries' in her person.

From the conflicting evidence at the trial a jury might find the following as facts: Prior to 1920 Jacob and Louis Promboim owned both buildings in question, and leased a tenement in one to the plaintiff, Jacob Promboim putting up, at that time, a clothesline from the premises so leased to a pulley borne upon the factory building, and agreeing that he would fix it and ‘look after it all the time.’ Jacob and Louis Promboim were then carrying on a junk and shoddy business in the factory building. From time to time as clothes caught on the line or as it needed fixing, she went to the factory building to report and thereupon some one attended to it. She never fixed it herself. She hired her tenement and always paid her rent at the office in the factory building.

In 1920 the corporation was formed-Louis and Jacob Promboim with members of their families owned all the stock. They were officers and Jacob Promboim was the general manager. Jacob and Louis leased the factory building to the corporation which took over and carried on the business formerly conducted there by Louis and Jacob, confining itself to the manufacture of shoddy. On the day of the accident in November, 1924, the clothesline became tangled and the plaintiff went to the factory building. She found Jacob Promboim in the office. She asked him to clear the line. He called for an employee, but none came. He, thereupon, told her to ‘go ahead and untangle it’; and, opening a door, showed the way upstairs, telling her that the staircase near the opened door was blocked by goods, but to ‘go further down and you will find another set of stairs, go right ahead.’ Light through the opened door showed a passage through bales of goods. He closed the door, darkening the way indicated. She went on, and fell into an elevator hold in the passage. The gate required by law was not in place. It had been broken or destroyed for months. Jacob, summoned by her outcries, helped to remove her to a hospital. He gave her no warning of the hole. The corporation was then occupying under a written lease dated April 8, 1924, from Louis and Jacob Promboim as lessors. The writ bore date November 5, 1927. Jacob Promboim testified that ‘the corporation is now out of existence and the papers are all filed away since 1926.’

At the close of the testimony the defendants moved that the plaintiff elect against which of the defendants she would proceed. She, thereupon, discontinued as to Louis and Jacob Promboim. The defendants moved for directed verdicts in favor of each of them, and excepted to the denial of the motions. Requests for rulings were filed by the corporation, and exceptions were claimed to the alleged refusal to give the first, second and sixth requests. It excepted also to part of the charge. The jury found for the plaintiff.

Obviously there is nothing in the exceptions to the refusal to direct verdicts for Jacob and Louis Promboim. After the discontinuance there was no action pending against them in which a verdict affecting them could be entered. Gray v. Cook, 135 Mass. 189;Taft v. Church, 164 Mass. 504, 41 N. E. 671.

The essential question presented is whether upon the evidence the corporate defendant could be found liable. We take the law to be settled that one rightfully upon the premises of another for purposes in which the owner or occupant has no beneficial interest takes the premises as he finds them, and has no claim to any duty of the possessor to him with reference to their condition beyond a duty not wantonly and wilfully to inflict injury upon him. One rightfully on the premises of another for purposes in which the possessor has a beneficial interest has a right to claim as a duty owed to him that reasonable care shall be used to furnish premises in a safe condition to admit the carrying out of the common purpose. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 377, 87 Am. Dec. 644;Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978,9 L. R. A. 640, 23 Am. St. Rep. 846;Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463;Hart v. Cole, 156 Mass. 475, 31 N. E. 644,16 L. R. A. 557;Wright v. Perry, 188 Mass. 268, 270, 74 N. E. 328;Norris v. Hugh Nawn Construction Co., 206 Mass. 58, 61, 91 N. E. 886,31 L. R. A. (N. S.) 623,19 Ann. Cas. 424;Scanlon v. United Cigar Stores Co., 228 Mass. 481, 117 N. E. 840;Wojcik v. Cadillac Berkshire Co., 256 Mass. 317, 319, 320, 152 N. E. 326;Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 161 N. E. 619;Bruso v. Eastern States Exposition (Mass.) 168 N. E. 206.

[6] The plaintiff was rightfully upon the premises, if there by the permission or the invitation of the defendant. Romana v. Boston Elevated Railway, 218 Mass. 76, 105 N. E. 598, L. R. A. 1915A, 510, Ann. Cas. 1917A, 893;Id., 226 Mass. 532, 116 N. E. 218. The long continued practice of going upon them for the payment of rent and to request action in regard to the clothesline affixed to its building will support findings that the corporation knew of her coming and permitted it. If so, an invitation was not essential to a lawful entry. We do not pause to consider whether in this connection an invitation to enter can be inferred.

The defendant...