Zaia v. ‘Italia’ Societa Anonyma Di Navigazione

• Decision Date: 14 July 1949
• Citation: 87 N.E.2d 183,324 Mass. 547
• Parties: ZAIA v. ‘ITALIA’ SOCIETA ANONYMA DI NAVIGAZIONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 547

87 N.E.2d 183

ZAIA

v.‘ITALIA’ SOCIETA ANONYMA DI NAVIGAZIONE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 8, 1948.

Decided July 14, 1949.

Exceptions from Superior Court, Suffolk County; Murray, Justice.

Action by Mary Zaia against ‘Italia’ Societa Anonyma Di Navigazione, for injuries resulting when plaintiff tripped and fell on defendant's steamship. A verdict was entered for defendant under leave reserved after a verdict for plaintiff, and plaintiff and defendant bring exceptions.

Plaintiffs exceptions overruled and defendant's exceptions dismissed.

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

A. L. Brown, Boston, W. Kopans and N. Fink, Boston, for plaintiff.

K. C. Parker, Boston, J. J. Mulcahy, Boston, for defendant.

WILLIAMS, Justice.

This is an action of tort for personal injuries where, after a verdict for the plaintiff, the judge, subject to an exception by the plaintiff, entered a verdict for the defendant under leave reserved. From the consolidated bill of exceptions of the plaintiff and the defendant it appears that the plaintiff was injured on Sunday, July 31, 1938, while on one of the decks of the defendant's steamship ‘Vulcania,’ which was docked at Commonwealth Pier in Boston. The plaintiff had visited the ship to bid good-bye to a friend, a passenger, who was sailing that day for Italy. ‘On her way off the boat to go home’ after orders had been given that anyone not a passenger must leave, she tripped on a loose strip of brass connecting two rubber mats, fell and was injured. According to her testimony, she had never been on any ship before to see anybody off or to say good-bye. Having reached the pier with some friends who accompanied her, she has ascended the gang plank, which reached to the ship from the pier at an angle, and had gone on board. She possessed no pass to go on the ship and was not asked to present one. Evidence of the defendant that passes were required for those who desired to board the ship and that no one was permitted on board without such a pass (which contained a provision for limitation of liability) could have been disbelieved by the jury. There was evidence of the due care of the plaintiff and of an unsafe condition which caused the plaintiff's injuries. The determining question for decision is whether there was evidence warranting a finding of an implied invitation to board the ship because of which the defendant owed to the plaintiff a duty to use reasonable care to keep the premises in a reasonably safe condition for her use. Kelley v. Goldberg, 288 Mass. 79, 81, 192 N.E. 513;LeBlanc v. Atlantic Building & Supply Co. Inc., 323 Mass. 702, 705, 84 N.E.2d 10.

A person may become an invitee when he is expressly invited to come on premises, or when, from their construction or use, such an invitation can be implied. Such person ‘must show that he was impliedly invited upon the premises by some allurement or inducement held out by the owner or person in control with intention and design. Such an invitation is not to be implied from a merely tacit assent to the use of the place.’ Brosnan v. Koufman, 294 Mass. 495, 499-500, 2 N.E.2d 441, 443, 104 A.L.R. 1177. In the case of a business visitor, in order to create this obligation of reasonable care on the part of the owner there must be something more than a mere invitation. The gratuitous social guest receives an invitation but as to him there is no such obligation. Statkunas v. L. Promboim & Son, Inc., 274 Mass. 515, 518, 519, 174 N.E. 919;Comeau v. Comeau, 285 Mass. 578, 582, 189 N.E. 588, 92 A.L.R. 1002;Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647. There must be a real or apparent intent on the part of the invitor to benefit in a business or commercial sense and an intent on the part of the invitee to enter upon the premises for a purpose consistent with that of the invitor as evidenced by the invitation. Plummer v. Dill, 156 Mass. 426, 427, 31 N.E. 128,32 Am.St.Rep. 463.

In this case we consider the relationship of the defendant, an ocean carrier of passengers, with the plaintiff, who boarded one of its vessels for the purpose of a social call on one of the passengers. The plaintiff had no intent to engage in business with the shipowner, and the accrual of a possible incidental benefit to the shipowner from permitting its passengers to have friends visit them was not sufficient to convert the plaintiff into a business visitor. Wurm v. Allen Cadillac Co., 301 Mass. 413, 416, 17 N.E.2d 305;Pilon v. Easthampton Gas Co., 248 Mass. 57, 142 N.E. 640;Wilkie v. Randolph Trust Co., 316 Mass. 267, 55 N.E.2d 466.

The obligation, however, to exercise reasonable care for the safety of invitees is not limited to business visitors. There is a class of cases, to which Sweeny v. Old Colony & Newport Railroad Company, 10 Allen 368,87 Am.Dec. 644, and Holmes v. Drew, 151 Mass. 578, 25 N.E. 22, belong, where the defendant, by his conduct having induced or impliedly invited the public to use a way in the belief that it is a public way which may be used as a matter of public right, is held to owe to those so using it the duty of exercising reasonable care for their safety. See Plummer v. Dill, 156 Mass. 426, 430, 31 N.E. 128,32 Am.St.Rep. 463. Another line of cases, closer by analogy to the instant case, deals with the duty of care owed by a railroad to friends of its passengers who enter its station or come upon its platforms to welcome or bid farewell to arriving or departing travellers. By the weight of authority it is held that the obligation of the railroad toward such visitors is to exercise reasonable care for their safety. Fournier v. New York, New Haven & Hartford Railroad Company, 286 Mass. 7, 189 N.E. 574, 92 A.L.R. 610;Kircher v. Atchison, Topeka & Santa Fe Railway Company, 32 Cal.2d 176, 195 P.2d 427;Atlantic & Birmingham Railway Company v. Owens, 123 Ga. 393, 51 S.E. 404;Newberry v. Baltimore & Ohio Chicago Terminal Railroad Company, 223 Ill.App. 304;New York, Chicago & St. Louis Railroad Company v. Mushrush, 11 Ind.App. 192, 37 N.E. 954; 38 N.E. 871;McKone v. Michigan Central Railroad Company, 51 Mich. 601, 17 N.W. 74,47 Am.Rep. 596;Himstreet v. Chicago & Northwestern Railway Company, 167 Wis. 71, 166 N.W. 665.

Unless special permission to enter is given, this obligation is not...