Appeal from judgment of Court of Common Pleas of Delaware County, March T., 1962, No. 474, in case of James Hamilton and Helen Hamilton, his wife v. Alvin Fean and Catherine Fean.
William C. Archbold, Jr., for appellants.
John S. J. Brooks, with him James Patterson, and Brooks, Macartney & Holl, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, and O'Brien, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Eagen concurs in the result. Mr. Justice Jones dissents. Dissenting Opinion by Mr. Chief Justice Bell.
On the evening of August 24, 1960, the plaintiff, Mrs. Helen Hamilton, and her two friends, Mrs. Mary Foster and Miss Marie Fean, had visited a hospital, returned to the home of Mrs. Hamilton and then set out in Mrs. Foster's automobile to take Miss Fean to her home. Mrs. Hamilton went along to give Mrs. Foster company on the way back after they would have left Miss Fean at her home. When the three ladies
arrived at Miss Fean's home, Mrs. Foster's automobile stalled and a telephone call was made to an automobile repairman. While waiting for the repairman to arrive, the three ladies went out on the Fean home porch, particularly to guide the repairman in the event he might have difficulty in locating the house, it then being midnight.
As they conversed and walked about, they occasionally leaned against the railing surrounding the porch. Mrs. Hamilton was resting against the pillar to which the railing was attached when the latter suddenly gave way and they all fell to the driveway beneath, fortunately not too far away. Nevertheless, Mrs. Hamilton sustained serious injuries and she brought suit against the owner of the house, Mrs. Catherine Fean. Her son, Alvin Fean, who had supervised repairs to the property and was regarded as agent for Mrs. Fean, was later added as a co-defendant.
The jury returned a verdict in favor of the defendants and the plaintiff has appealed for a new trial, alleging trial errors attributed to the trial judge. The judge charged the jury that since Mrs. Hamilton was a gratuitous licensee she was to be classified in the "lowest" of the category of guests and that, therefore, the defendant owed her only a "modest" responsibility as to due care. There is no such thing as a "modest" responsibility in the law. Responsibility exists or does not exist. There can be modification of care required, of course, and it is all spelled out in the books, but a modest responsibility is not defined nor can it be defined at law. Nor can an invited person be placed in the "lowest category" of guests. No matter how far down the guest may be listed in the social register and no matter how patience-taxing he may be, he certainly would not rate lower than an uninvited bore. Moreover, Mrs. Hamilton was at the Fean home more as a helping companion than as a gratuitous guest. She
had accompanied Mrs. Foster who had made the trip to the Fean home for the accommodation of Miss Fean. Mrs. Hamilton, therefore, was entitled to that due care which would ensure her of being informed of a latent defect factually or impliedly known by the landlord. (Matthews v. Spiegel, 385 Pa. 203.)
The fact that neither Mrs. Catherine Fean, owner of the Fean house, nor her son Alvin Fean, was at home on the night of the accident, could not reduce their liability as landlords if in fact they were responsible for any defect in the structure of the house. Thus it was error for the court to charge the jury, as it did: "He [Alvin Fean] didn't have to maintain it necessarily in a safe condition; but if it wasn't in a save (sic) condition he has a duty to warn these people. But you will take into consideration that neither he nor his mother was there the night this happened."
Plaintiff's counsel objected to this portion of the charge whereupon the court endeavored to explain: "They have the duty to warn, if they know of the condition they have the duty to warn guests. Now whether they were there or whether they weren't, if you feel that they should have known that guests might be there and might lean on the rail, then they might have been negligent in not warning. A mere not being there may not necessarily absolve them." This statement by the judge told the jury that absence could absolve the defendants from liability. The man who plants a bomb and then absents himself from the explosion is as responsible for the harm the explosion inflicts on others as if he had lighted the bomb and thrown it at the victims. Whatever fault could be ascribed to the defendants for an allegedly defective ...