FLORENCE S. MARSTON vs. BERTHA C. ROSE.

PIERCE, J. This is an action of tort to recover damages for personal injuries sustained by the plaintiff on November 25, 1926, in falling down a stairway in a house on Montvale Road, Newton. The case was tried with an action against the Boston Publishing Company. In the latter action the jury found for the plaintiff, but when the case was brought before this court on exceptions of the defendant to the refusal of the judge to direct a verdict for the defendant, the defendant's exceptions were sustained, and judgment was ordered for the defendant. 271 Mass. 307. In the

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present action the jury returned a verdict for the defendant. The case is now here on the plaintiff's exceptions to the refusal of the judge to make requested rulings and to parts of the charge.

The defendant was the owner of the house wherein the injuries of the plaintiff were sustained. The house was for sale and in order to attract prospective purchasers the defendant, through her husband, who was admitted to be her agent, entered into an agreement with the Boston Publishing Company (hereinafter called the company) to run a "Better Homes Exhibit" on the premises, the house to be open for inspection by the public between 2 and 9 p.m. from November 21 to November 28 inclusive. The plan was one whereby the company obtained advertising for the Boston Herald and the defendant gained the advantage of having her property shown to possible purchasers. In pursuance of this agreement the company, through the Herald, advertised on November 21, 1926, a "Better Homes Exhibit" on the defendant's premises, the notice stating that the house was completely furnished with all the latest, modern, electrical appliances and would be open for public inspection daily from November 21 to 28 inclusive from 2 to 9 p.m. In response to the announcement in the Herald the plaintiff, with her sister, went to the house at about 4 p.m. on November 25, 1926, for the purpose of inspecting it. She was greeted by a Mrs. Fitzgerald, who was performing the functions of a "hostess," and at her request she signed the register. After inspecting the rooms on the lower floor she went upstairs, saw what the furnishings were in one of the chambers that opened on the main hall, then went into the maid's hallway and into the maid's room and bathroom, which led off the small hallway. There was no artificial light in the maid's room, in the maid's bathroom, or in the small hallway outside the bathroom. The main hallway and the small hallway were dimly lighted by the outside daylight, and the plaintiff felt safe in going through them with the daylight "that then was." After she came out of the maid's bathroom into the small hallway, she made a step or two to the right and was hurled down a back

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stairway that she did not see or know of. The negligence alleged in the declaration in substance is that the defendant failed to keep the electric lights burning in the hallway, failed to guard the stairway or failed to warn the plaintiff of its presence. At the close of the evidence the plaintiff requested the judge to give the following rulings: "(4) The defendant, Bertha C. Rose, was a licensor with respect to the house situated at 3 Montvale Road in said Newton"; "(5) The Boston Publishing Company was a licensee of said house"; "(7) The defendant, Bertha C. Rose, at all times between November 21, 1926, and November 27, 1926, was in legal possession and control of the premises at 3 Montvale Road, including the house situated thereon"; and "(8) By permitting The Boston Publishing Company to occupy the house as a licensee the defendant, Bertha C. Rose, did not divest herself of the legal control of the premises."

Requests numbered 4 and 5 were dealt with by the judge in his charge as follows: "There have been some requests for rulings made here by various parties which raise the issue as to the particular technical legal terms to be applied to the relationship between the Boston Herald Company and the owner of the house, as to whether the Boston Publishing Company was in strict contemplation of law a tenant or a licensee, or an agent or servant of the owner, or an independent contractor acting for the owner, and various questions of that particular kind. I do not know how far it would be useful for me in so far as helping you to decide your problem, which is an issue of fact, to attempt to put any particular label on the relationships of the parties here . ... If the matter be of any importance, as I construe the situation here, the Boston Publishing Company was not at any rate in the ordinary or conventional sense a tenant of the property and enjoying the full and complete control of the premises let in the same fashion and for the same reasons as an ordinary tenant in a building .... But this, as I conceive it, is not in the nature of a tenancy, but is in the nature of a permissive use of the premises by the Boston Herald Company on the part of the owner." The trial judge further

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charged: "But this case is to be considered upon the facts as they appear here throughout and on the principles which I have attempted to lay down to you. And in that connection I think I stated that while it was not important to put labels on these different parties here or define exactly what their official legal status was or how it might be described in words of art, if it was in any way material, that I would rule as a matter of law that the relationship here was not the ordinary relationship of landlord and tenant. In so far as that might imply any limitation I remove the limitation and rule that the relationship here was not that of landlord and tenant between Mr. Rose and the Boston Publishing Company, but the exact character of the relationship is to be determined upon the nature of the contract entered into between them."

It was pointed out in Marston v. Boston Publishing Co. 271 Mass. 307, at page 310, that "The plaintiff was not a party to the contract between the defendant [The company] and Rose and this was material to the case only in so far as it bore on the question whether the defendant [The company] had a duty to see that the rear hall was properly lighted." Brown v. Winthrop, 270 Mass. 322, 325. It was said in Johnson v. Wilkinson, 139 Mass. 3: "A license is a permission or authority to enter the land and do certain acts, or series of acts, the parties not intending to convey any interest in the land." The instructions on this point were in substance the same as those requested.

The seventh request could not have been properly given. There was evidence from which the jury could have warrantably found that Mrs. Fitzgerald, the hostess, was in control of the house and had undertaken the duty of maintaining proper lighting conditions. Whether she was the servant or agent of the company or of the defendant Rose was a disputed question of fact on conflicting evidence, and the question of the control of the premises by Rose was properly left to the jury. Cunningham v. Cambridge Savings Bank, 138 Mass. 480. The eighth request is open to similar objection. Mrs. Fitzgerald could have been found to be in control of the lighting arrangements. The request

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assumed the existence of facts which were the subject of contradictory testimony, and for this reason could have been refused. Rand v. Farquhar, 226 Mass. 91, 100. Smedley v. Walden, 246 Mass. 393, 400. There was no error in the refusal to give the requests numbered 7 and 8.

The plaintiff excepted to the portions of the charge "in which the court charged the jury that the owner would not be liable if Mrs. Fitzgerald was the agent of the Boston Publishing Company and the defendant Rose had not assumed any duties with respect to the lights." The instruction was a correct statement of the legal principles applicable to the issues in the case. Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103, 108. The mere ownership of the premises by the defendant, without occupancy or control of the building, did not subject her to liability for the injuries received by the plaintiff. Earle v. Hall, 2 Met. 353. Wright v. Sears, 242 Mass. 292. All the exceptions argued have been considered, and each of them must be overruled.

Exceptions overruled.