Wynn v. Sullivan

• Citation: 294 Mass. 562,3 N.E.2d 236
• Parties: WYNN v. SULLIVAN.
• Decision Date: 30 June 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 562

3 N.E.2d 236

WYNN v. SULLIVAN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1936

Exceptions from Superior Court, Suffolk County; Dillon, Judge.

Action of tort by Ottis Wynn against Gilbert P. Sullivan, executor where, following the recording of a verdict for plaintiff in the sum of $850, a verdict for defendant was ordered entered pursuant to leave reserved. On exceptions saved by plaintiff.

Exceptions overruled.

E. R. Bonitz, of Boston, for plaintiff.

A. S Allen, of Boston, for defendant.

QUA Justice.

On January 24, 1931, the plaintiff, a police officer of the city of Boston, sustained a personal injury as the result of falling into the well of a freight elevator which opened upon the side of a narrow, covered alleyway running through or under a building on Portland street in that city. The defendant's testator, hereinafter called the defendant was in control of the alleyway and of the elevator well. The building five stories in height, was occupied by various tenants who used the elevator and the alleyway in common. The plaintiff's declaration is based upon negligence and upon wanton, willful and reckless misconduct on the part of the defendant.

There was evidence that objectionable persons had been in the habit of congregating and drinking in the alleyway; that on the evening of the accident there was a ‘ sort of commotion’ there, and one of the tenants requested the plaintiff to investigate ‘ a disturbance’ ; that in response to this request and in pursuance of his duty as a police officer, the plaintiff went to the alleyway; that while groping his way in from the street in the darkness he fell into the elevator well; and that the safety door which should have barred the opening was up, although the elevator was at the top floor and not at the level of the alleyway. Without reciting the evidence in detail, we may assume for the purposes of this decision that the jury were justified in finding that the defendant was careless in the maintenance of the safety door or of the apparatus by which it was operated and that the plaintiff was in the exercise of due care.

The difficulty with the case, from the plaintiff's standpoint, lies in discovering any violation of any duty which the defendant owed to the plaintiff. It may be conceded that a police officer who enters upon private premises in good faith in the performance of his official duty to protect life and property and to preserve the is not a trespasser. Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450, and cases cited. For present purposes it may be accurate enough to say that he enters under a license implied in law. But confining our decision to the precise case here presented, we can find no evidence of an express or implied invitation by the defendant or of any other special authority or privilege which would extend the plaintiff's rights beyond those of an ordinary licensee. Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450; Creeden v. Boston & Maine Railroad, 193 Mass. 280, 79 N.E. 344,9 Ann.Cas. 1121; Brennan v. Keene, 237 Mass. 556, 561, 130 N.E. 82, 13 A.L.R. 629; Brosnan v. Koufman (Mass.) 2 N.E.(2d) 441, and cases cited; American Law Institute, Restatement, Torts, § 345, Comment b. There was here no general invitation arising from the condition of the premises or from conduct of the defendant himself, to use the alleyway as the regular means of approach to the building such as was found in Learoyd v. Godfrey, 138 Mass. 315, and in Gordon v. Cummings, 152 Mass. 513, 25 N.E. 978,9 L.R.A. 640, 23 Am.St.Rep. 846. In this respect the case resembles Lally v. A. W. Perry, Inc., 277 Mass. 463, 466, 179 N.E. 155. There is no evidence of such wilful, wanton or reckless conduct on the part of the defendant as would enable a bare licensee to recover against him. O'Brien v. Union Freight Railroad Co., 209 Mass. 449, 95 N.E. 861,36 L.R.A.(N.S.) 492; Murphy v. Boston & Maine Railroad, 248 Mass. 78, 142 N.E. 782; Partridge v. United Elastic Corp., 288 Mass. 138, 144, 192 N.E. 460.

The plaintiff contends that he had the rights of an invitee or business visitor because of an invitation by the defendant's tenant to come to the alleyway for purposes connected with the convenience and comfort of the tenant in the use of the common passageway which remained in the landlord's possession and control. Without pausing to consider whether the evidence would support a finding that the plaintiff did in fact come to the alleyway under the tenant's invitation and not simply as a police officer in the performance of a public duty, it is a sufficient answer to this contention that the defendant's duty to such an invitee would be only to use due care to maintain the alleyway and the elevator well in as safe a condition as they were in or appeared to be in at the time of the letting to the tenant, and that there was no evidence as to when the premises were let to the tenant or as to the condition or appearance of the alleyway and the elevator well at that time. Domenicis v. Fleisher, 195 Mass. 281, 283, 81 N.E. 191; Gallagher v. Murphy, 221 Mass. 363, 108 N.E. 1081, Ann.Cas.1917E, 594; Goldsmith v. Ricles, 272 Mass. 391, 172 N.E. 526; Peirce v. Hunnewell, 285 Mass. 287, 189 N.E. 77; Garland v. Stetson (Mass.) 197 N.E. 679. See Fitzsimmons v. Hale, 220 Mass. 461, 464, 107 N.E. 929.

The plaintiff further insists that violation by the defendant of certain penal statutes designed to insure safety in the maintenance and operation of elevators was a contributing cause of the plaintiff's injury and that these statutes were intended for the protection of all persons rightfully upon the premises and that therefore the defendant owed to the plaintiff a duty to observe their requirements, citing Parker v. Barnard, supra. He calls attention to G.L. c. 149 § 129, and to St.1907, c. 550, § 38. See also St.1914, c. 782, § 6. It is at least doubtful whether the evidence would have supported a finding of any violation of these statutes by the defendant. If it would have supported such finding, then it is true that the defendant's violation of law would have been evidence of negligence on his part, if he had owed a duty to be careful. But as we have already shown, he did not owe such duty to the plaintiff at common law. If, however, the plaintiff intends to go further and to assert that...