Argo v. Goodstein

• Decision Date: 27 May 1970
• Citation: 265 A.2d 783,438 Pa. 468
• Parties: James ARGO v. Sidney GOODSTEIN, Appellant.
• Court: Pennsylvania Supreme Court

Page 783

265 A.2d 783

438 Pa. 468

James ARGO v. Sidney GOODSTEIN, Appellant.

Supreme Court of Pennsylvania.

May 27, 1970.

Robert B. Surrick, Cramp & D'Iorio, Media, for appellant

Garland D. Cherry, Kassab, Cherry, Curran & Archbold, Chester, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellee, James Argo, blind since birth, was a door-to-door peddler of brooms, brushes and dusters. For some ten to twelve years, on the occasion of every three to four months, appellee had visited each and every store in the 6700 block of Market Street in Upper Darby, Delaware County, a business section of town, including the premises owned by the Good Company, whose president was Sidney Goodstein, the appellant. On July 11, 1960, at approximately 11:30 a.m., appellee approached the door to the premises in question, heavily laden with his wares. Pushing open the unlocked door, he felt with his cane (apparently striking on the foundation wall or threshold area). Then, holding open the door with his right shoulder, he grabbed his brooms and stepped quickly so as not to be hit by the door. The first step he took was within the range of his cane and brought his foot onto a solid surface. Unfortunately, as he entered he stepped into a floorless area and fell 8 feet 8 inches onto the basement floor below, as a result of which he sustained serious personal injuries.

As appellee later discovered, the Good Company was expanding and remodeling. Two companion suits were brought in trespass against Good Company, Inc., the owner of the premises, and against its President, Sidney Goodstein, as the general contractor in charge of the construction work being done on the premises.

Initially, the case was tried in May, 1964, and a jury verdict totalling $27,500 was rendered in favor of the appellee against both defendants. The defendants appealed from the judgment entered on the verdict after the denial of their motions for judgment n.o.v., and for a new trial. We affirmed the judgment in an opinion by Mr. Justice Musmanno.

However, the appellants filed a petition for reargument concerning a communication between the trial judge and the jury in the absence of counsel. After reargument, based on the aforesaid communication, we withdrew our previously rendered opinion and ordered a new trial.

A second trial was held on February 13, 14, 15, and 16, 1968, and the jury rendered a verdict in favor of the appellee against the appellant, Sidney Goodstein, in the amount of $38,000, and in the companion action in favor of the defendant, Good Company, Inc. Motions for new trial and judgment n.o.v. were denied below and, once again, an appeal followed the entry of judgment.

In seeking a reversal, the appellant raises several issues. The primary issue presented, the same presented after the first trial, is whether there was sufficient evidence of negligence to allow submission of the case to the jury.

The standard of care required of appellant towards appellee, the breach of which would be negligence, depends on appellee's status on the premises, i.e., whether he was a trespasser (voluntary or involuntary), a licensee, or a business visitor. By a special finding of fact, the jury found that appellee was a business visitor.

We are of the opinion that sufficient evidence was present in the record to sustain this finding. 'A business visitor is a person who is invited or permitted to enter or remain on land in possession of another for a purpose directly or indirectly connected with business dealings between them.' Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 59 A.2d 68 (1948), citing Sec. 332 of Restatement of Torts.

Furthermore, 'the class of persons qualifying as business visitors is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor, but includes as well, those coming upon the land for a purpose connected with their own business which itself is directly or indirectly connected with a purpose for which the possessor uses the land.' Straight v. B. F. Goodrich Co., 354 Pa. 391, 47 A.2d 605 (1946), citing 332(a) of the Restatement of Torts.

Appellee's purpose on the premises was to sell his brooms, brushes, and dusters. There was evidence that appellee had previously entered appellant's premises and had transacted business with him. On these previous occasions, he was clearly a business visitor, as any vendor would be in such a situation. See Robb v. Niles-Bement-Pond Co., 269 Pa. 298, 112 A. 459 (1921), where a daily iceman was deemed to be a business visitor, and Hartman v. Miller, 143 Pa.Super. 143, 17 A.2d 652 (1940), where a waiting salesman was held to be a business visitor.

In challenging the jury's finding that appellee was a business visitor, appellant argues that appellee was bound by the conclusion to which appellant testified, i.e., that the premises were no longer a store, but were instead a construction site; since appellant was called as for cross-examination. However, the rule that where a litigant calls his adversary on cross-examination he is bound by the testimony is limited by the principle that 'the testimony adduced as on cross-examination may not only be contradicted by the direct testimony of other persons but may be impeached by its own inconsistencies or by such intrinsic improbability or obvious falsity as to stamp it as unworthy of credit.' Bogdanoff v. Manis, 346 Pa. 243, 30 A.2d 321 (1943).

As the court below points out, there were at least nine inconsistencies in appellant's testimony. We agree with the court below. Appellant's testimony and his conclusions do not bind appellee.

To refute further the finding that appellee was a business visitor, appellant emphasizes his testimony at trial that although he operated an appliance store between 1945 and January of 1960, the old store, then known as 6770 Market Street, was demolished in early 1960 and work began on the new structure calling for five separate store units, numbers 6770, 6772, 6774, 6776 and 6778 Market Street; that the overall structure was approximately eighty percent complete; that 6772 was not tenanted; that no invitation to enter 6774 was extended to appellee or the public; that the door to the demolished building was in a different place than that used by appellee in the instance; and that the building into which appellee fell encompassed not only the old premises, but also the parking lot which formerly served the old premises.

Therefore, appellant reasons that unlike the occasion of appellee's previous visits to the premises, this time appellant's store was not open for business, but was under construction and there could be no mutuality of purpose so as to make appellee a business visitor.

To carry this argument to its logical conclusion, if the owner of a premises is not interested in talking to a salesman, even though he has dealt with him in the past, and even though he has given the salesman no indication that relations between the parties have changed, the owner can unilaterally remove the salesman from the class of business visitors, thereby lessening the standard of care owed to him.

This is not the law in Pennsylvania. As we said in Parsons v. Drake, 347 Pa. 247, 32 A.2d 27 (1943), quoting from Comment (b) to Sec. 343 of the Restatement of Torts:

'A possessor of land is subject to liability to another as a business visitor only for such bodily harm as he sustains while upon a part of the land upon which the possessor gives the other Reason to believe that his presence is permitted or desired because of its connection with the business or affairs of the possessor and which as such is held Open to the other as a business visitor.' (Emphasis supplied.)

In the instant case, because of appellant's prior dealings with appellee, and because of his conduct in leaving open the completely finished clear glass doors, which directly abutted on the sidewalk, a jury could reasonably find that appellant had given appellee reason to believe his presence was permitted. Indeed, by leaving the door open within easy access of the sidewalk, he had issued him an implicit invitation.

Appellant contends that the trial judge committed error in giving the jury an incomplete charge on the definition of business visitor when the jury sought further instructions in the midst of its deliberations.

During their deliberations, the jury sent out the following question:

'Would the term business visitor apply only to a person entering an established place of business, that is open for business, where the visitor may also conduct his own business, or can the term be applied unilaterally?'

The judge then instructed:

'A business visitor is a person who is invited or permitted to enter or remain on land in possession of another for a purpose directly or indirectly connected with business dealings between them. The class of persons falling within this category is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor but includes as well those coming upon the land for a purpose connected with their own business which itself is directly or indirectly connected with a purpose for which the possessor uses the land.'

Appellant argues that the judge should have given the jury a simple 'No,' or should have also read the remainder of Sec. 466.3(3) of the Trial Guide, which states:

'To be a business visitor one must enter or use the premises for the mutual benefit of himself and the owner or occupants; the purpose of his entry must be in some point connected with business dealings between them. But, even an invitation, express or implied, does not, If the element of mutual benefit is lacking, put such persons under the same legal protection as business visitors.' (Emphasis supplied.)

However, appellan...