Atlantic Greyhound Corporation v. Newton, 4970.

• Decision Date: 12 November 1942
• Docket Number: No. 4970.,4970.
• Citation: Atlantic Greyhound Corporation v. Newton, 131 F.2d 845 (4th Cir. 1942)
• Parties: ATLANTIC GREYHOUND CORPORATION v. NEWTON.
• Court: U.S. Court of Appeals — Fourth Circuit

131 F.2d 845 (1942)

ATLANTIC GREYHOUND CORPORATION v. NEWTON.

No. 4970.

Circuit Court of Appeals, Fourth Circuit.

November 12, 1942.

Samuel W. Ruark, of Raleigh, N. C. (Robert Ruark, of Raleigh, N. C., on the brief), for appellant.

Thomas W. Ruffin, of Raleigh, N. C., for appellee.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

SOPER, Circuit Judge.

This appeal questions the correctness of the refusal of the District Judge to direct a verdict for the defendant in an action for personal injuries suffered by the plaintiff from a fall on the defendant's premises. The defendant claimed that the plaintiff was injured while on the premises as a mere licensee and that the defendant owed him no duty which had been violated; but the District Judge overruled this contention and found a verdict for the plaintiff in the sum of $7,500.

J. W. Newton was a driver for the Carolina Dry Cleaning Company in Raleigh, North Carolina, and in the performance of his duty called for articles to be cleaned or laundered and returned them to the customers. Amongst the customers was the Atlantic Greyhound Corporation, the defendant in this case, which was engaged in the transportation of passengers by bus and maintained an office and garage in Raleigh. For more than eight years the Cleaning Company periodically cleaned and dyed bus curtains for the Greyhound corporation, and Newton was accustomed to enter the garage in connection with this business. In addition the Cleaning Company laundered two uniforms per week per man for the garage employees, which the employees furnished and caused to be laundered at their own expense; and in order to pick up and return the uniforms, Newton also visited the defendant's premises repeatedly. Entrance was made through the large garage door used by the buses and marked with the words "no admission except on business"; and this was done with the full knowledge and consent of the bus company for, as the company's district manager said, "the men have to have the laundry taken care of".

On Saturday morning, December 7, 1940, in response to a call, Newton went to the garage in order to collect the uniforms to be cleaned. He entered by the large garage door and walked across the floor of the garage and gathered the uniforms to be cleaned from the lockers of the employees, and on his return slipped and fell on his back near the door, and sustained serious injuries from which he subsequently became totally and permanently disabled.

The garage was used to service the buses, and in order to remove the accumulation of oil and grease from the floor it was customary for employees of the bus company to use a substance known as "kerosene gump" which was effective for this purpose, but left the floor slippery and unsafe for walkers, at least temporarily. On the morning in question an employee of the bus company cleaned the floor with this material at or about the time of the plaintiff's visit. Newton saw this man near the door but did not see him do the cleaning. This employee himself testified that although he did not see Newton or the accident, he was using the cleaner on the floor at about the time of Newton's visit. Newton concluded that the slippery substance was applied to the floor while he was gathering up the uniforms, as he did not see anything on the floor when he entered. Nor did he see the slippery place which caused him to fall as he left, although he looked out for himself as well as he could while encumbered with the large bundle of laundry.

This evidence was submitted by consent to the judge without a jury, and at the conclusion of the testimony a motion for a directed verdict was made by the defendant and overruled by the judge. Answering specific issues, the judge found that the plaintiff was injured by the negligence of the defendant and did not contribute to his own injury, and was therefore entitled to recover.

The defendant confines its argument to the one proposition that under the North Carolina law Newton's status at the time of the injury was that of a permissive licensee to whom the occupant of the premises owed no duty except to abstain from wilful or wanton injury; and since this element was totally lacking in the case, the judge should have absolved the defendant from all liability for the injury sustained.

The duty of an owner of land to a licensee under the North Carolina law is stated in Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 736, 9 S.E.2d 408, 412, in the following terms: "As a general rule, the owner or person in charge of property, is not liable for injuries to licensees due to the condition of the property, or as it has been expressed, due to passive negligence or acts of omission. * * * The duty imposed is to refrain from doing the licensee wilfull injury and from wantonly or recklessly exposing him to danger." See also, Restatement of Torts, § 342.

We consider first whether the North Carolina decisions require the conclusion that Newton was a "permissive licensee", or to use the terminology of the Restatement, "a gratuitous licensee", when he was injured on the defendant's premises. "To constitute one an invitee of the...