ADELINE MALLARD vs. BESSIE D. WALDMAN & another, trustees.

CUTTER, J. This is an action of tort to recover for personal injuries to the plaintiff incurred upon premises owned by the defendants, the trustees under a declaration of trust. The trial judge denied, subject to the trustees' exceptions, their motion for a directed verdict on the plaintiff's opening and also their motion for a directed verdict at the close of the evidence. The trustees also excepted to (a) the judge's failure to prevent allegedly improper argument by the plaintiff's counsel and (b) certain portions of the judge's charge. There was a verdict for the plaintiff and the case is here on the trustees' bill of exceptions. The facts are stated in their aspect most favorable to the plaintiff.

The plaintiff with a group of women attended, on May 11, 1951, a dance at Ruggles Hall, one of a series run by a man named "Wally." About 11:15 P.M., as she went down the stairs from the dance hall on the second floor of the building, she "went on her back on the stairs" and "fell on her whole weight. . . . When anybody falls, you don't know how you fell. You just fall. All that she remembers is that she went down and just cracked her back on the stairs." Later she said that she "fell on the bottom stair" and struck her "head on the sixth stair." After she "regained her composure," she observed a "crack in the stairs, piece taken right out . . . just like a broken stair. The stairs were marble . . .. There was quite a piece out of the bottom stair, where she was." Her injuries were serious. She paid admission to the dance. On prior occasions she had noticed "this step with the piece out of it."

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The building is a three story brick building. It has two dance halls and seven or eight offices. The dance hall on the second floor is reached from 5 Ruggles Street through a long hallway and stairs with two landings, six or seven steps made of marble to each landing. One or two steps are made of wood. One Waldman managed the property for the owners and rented the dance hall at 5 Ruggles Street to Wally by oral agreement under which Wally "was a tenant at will paying three hundred dollars a month . . .. Wally made all repairs inside his hall . . . and paid . . . everything pertaining to the inside of the building. . . . The entrance to the hall -- the stairs going up -- were included in the oral lease and rental. . . . Wally never repaired the stairs . . .. When . . . [Waldman] rented the hall to Wally, he [Waldman] knew that he [Wally] was going to use it as a public dance hall for the admission of people . . . that as far as he knew, the condition of the stairs was all right just prior to the oral renting to Wally" but Waldman did not then examine the stairs. "The stairs are in the same condition as . . . for the last fifteen years." Another witness stated that the stairs "were the same at the time of the leasing as they were" when the plaintiff fell.

The trial judge was not required to direct a verdict on the plaintiff's opening. In his discretion, he may prefer to have the case "presented on actual evidence rather than . . . on a statement of counsel." Perry v. Carter, 332 Mass. 508, 509. See also Douglas v. Whittaker, 324 Mass. 398, 399-401; Amorosso v. Farina Bros. Co. Inc. 339 Mass. 595, 596.

2. The trustees, in support of their position that a directed verdict for them was required at the close of the testimony, contend that there was no evidence (a) that the trustees were in control of the stairs; (b) that, even if the trustees were in control of the stairs, the stairs were in any different condition from that in which they were, or appeared to be, at the time of the letting (see McCarthy v. Isenberg Bros. Inc. 321 Mass. 170, 171-173); or (c) showing any causal connection between the defect and the fall. The trustees were the owners of the property. The jury without distortion or

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mutilation of an integral portion of Waldman's statements (see Woods v. DeMont, 322 Mass. 233, 235) could believe his testimony that the terms of the oral renting included the dance hall and disbelieve his testimony that Wally also rented the stairs. See Nunan v. Dudley Properties, Inc. 325 Mass. 551, 553. They could find support for this view in the fact that Wally repaired the hall but did no work on the stairs. They could believe Waldman's testimony that, "as far as he knew, the condition of the stairs was all right just prior to the oral renting," and disbelieve the testimony that the stairs had remained in the same condition for fifteen years. Waldman's testimony, if thus only partly believed, was more favorable to the plaintiff than her own testimony tending to show that the stairs were in the same condition as at the time of the letting, viz. that she "went to Ruggles Hall when Wally opened it" and that on "The first night that she went to Wally's . . . she saw a piece out of the bottom stair."

The plaintiff's testimony was that most favorable to her with respect to the causal connection between the alleged defect and her fall. See Harris v. Gee, 328 Mass. 213, 215-216. Cf. McDonald v. Yogel, 329 Mass. 492, 494; Boday v. Thibault, 337 Mass. 243, 245; Merwin v. De Raptellis, 338 Mass. 118, 120-121, where there was evidence that the defect in fact caused the injury. Cf. also Marquis v. John Nesmith Real Estate Co. 300 Mass. 203, 206; Dreher v. Bedford Realty, Inc. 335 Mass. 385, 389. She testified that she fell "on the bottom stair" and that there "was quite a piece out of the bottom stair, where she was" (emphasis supplied). Although this evidence was slight, we are unable to say that the jury could not infer that there was greater probability that the "piece out of the . . . stair" contributed to the accident than that she simply fell. The case is governed by cases like Dreher v. Bedford Realty, Inc. 335 Mass. 385, 389 (steps worn at place at which jury "could have found that the plaintiff was descending"), rather than by cases like Gerstenzang v. Kennedy & Co. Inc., ante, 174, 175 (where there was no evidence showing the presence

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of excessive wax upon the "portion of the floor on which she slipped").

3. The judge erred in permitting comment by the plaintiff's counsel upon the absence of Wally as a witness. It was not shown that Wally was available, although Waldman admitted that he had "not attempted to locate" Wally. See Heina v. Broadway Fruit Mkt. Inc. 304 Mass. 608, 610-611; Horowitz v. Bokron, 337 Mass. 739, 743-744, and cases cited. It also was not shown, nor was it reasonable to infer, that Wally's testimony would in any degree have been unfavorable to the trustees. See McKim v. Foley, 170 Mass. 426, 428; McGeorge v. Grand Realty Trust, Inc. 316 Mass. 373, 377-378.

4. The judge improperly charged that "an owner of property, in control of the premises, is supposed to keep it in that condition of repair that it was in at the time that the place was occupied." We assume that the judge was referring to the stairs and instructing the jury about the law applicable, if they should find, despite Waldman's testimony, that the trustees remained in control of the stairway. He incorrectly stated the applicable rule. After a full review of the numerous earlier cases, this rule in McCarthy v. Isenberg Bros. Inc. 321 Mass. 170, 172, was said to be that "the duty of the landlord toward persons who come upon the premises to do business with his tenant is no greater than his duty to the tenant, and in the absence of special agreement that duty is to use reasonable care to maintain common approaches in as good condition as they were in or appeared to be in at the time of the letting to the tenant" (emphasis supplied). See also Stedfast v. Rebon Realty Co. Inc. 333 Mass. 348, 350.

5. As the error, just mentioned, in the charge requires a new trial in any event, we do not pause to consider other questions relating to the charge which are unlikely to recur. It is appropriate, however, to discuss one contention of the plaintiff. This is not a case where the landlord extended on his part any invitation to customers of the tenant to visit the premises. Cf. Underhill v. Shactman, 337 Mass. 730,

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733-734. Under our cases, whether the landlord retained control of the stairs or leased them to Wally, the landlord would not be liable to a tenant's customer merely because, at the time of the letting, the premises were in defective condition and the landlord then knew or had reason to know that the leased premises would be used by the public. If the landlord retained control of the stairs, the principle underlying Restatement: Torts, Section 359, as applied to facts such as those here present, is inherently inconsistent with the rule of the decisions reviewed in the Isenberg Bros. case. In case the stairs were let to Wally, Section 359 does not represent the rule of the Massachusetts decisions applicable upon this record with respect to "the tenant and those entering under him." See Luoma v. Socony-Vacuum Oil Co. Inc. 332 Mass. 101, 104. Cases dealing with the letting or licensing of a public hall for a brief period, in which it is "obvious that the safety of the building must be left mainly to the" owner, do not support the application of Section 359 to a case like this. Cf. Oxford v. Leathe, 165 Mass. 254, 255; Schofield v. Wood, 170 Mass. 415, 416, 418; Shrigley v. Boston Symphony Orchestra, Inc. 287 Mass. 300, 302-303; Simons v. Murray Realty, Inc. 330 Mass. 194, 196-197; note, 62 Harv. L. Rev. 669, 671.