Austin v. Buettner

• Decision Date: 21 August 1956
• Docket Number: No. 211,211
• Citation: 124 A.2d 793,211 Md. 61
• Parties: James H. AUSTIN, to his own use and to the use of New Amsterdam Casualty Company, v. J. Adam BUETTNER and Lula Buettner, his wife, and Vance's Tavern, Inc.
• Court: Maryland Court of Appeals

Page 61

211 Md. 61

124 A.2d 793

James H. AUSTIN, to his own use and to the use of New Amsterdam Casualty Company,

v.

J. Adam BUETTNER and Lula Buettner, his wife, and Vance's Tavern, Inc.

No. 211.

Court of Appeals of Maryland.

Aug. 21, 1956.

Francis B. Burch and John R. Royster, Baltimore (William J. McWilliams, Annapolis, and Kieffner, Stinchcomb & Royster, Baltimore, on the brief), for appellant.

Paul T. Pitcher, Glen Burnie, W. Lee Harrison, Towson (Richard C. Murray, Towson, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant, Austin, then a solicitor of new accounts for the Equitable Trust Company, of Baltimore, visited a tavern at Riviera Beach, in Anne Arundel County, leased and operated by one of the appellees, Vance's Tavern, Inc., and owned by the other appellees, the Buettners. The purpose of Austin's visit was to solicit business for his employer. He had had no previous contact with Vance's Tavern, and his call was made in the course of canvassing the Riviera Beach area for customers for a branch of the Trust Company. He arrived at about 11 o'clock in the morning on September 16, 1952. The weather was bright and sunny. He opened a screen door, took a step and fell down a flight of steps just inside the door, which led to the tavern or rathskeller in the basement of the building. He brought this suit, on his own behalf and to the use of his employer's compensation insurance carrier, to recover for injuries sustained in the fall against the appellees and against Edwin S. Vance, Olla Vance and William L. Gable individually and trading as Vance's Tavern, Inc. The trial court directed a verdict in favor of these individual defendants, who were the officers of the corporate defendant; and the appellant concedes the correctness of that action. Motions for directed verdicts offered by the other defendants, the present appellees, were overruled. The appeal is from judgments in favor of Vance's Tavern, Inc. (referred to below as 'Vance's') and the Buettners, entered on their motions for judgment N.O.V., which were made and were granted by the trial court after the case had been submitted to the jury and the jury had failed to agree. General Rules of Practice and Procedure, Part Three, III, Rule 8.

The issues presented are: first, was Austin an invitee or licensee; second, were either (a) Vance's, (b) the Buettners, or (c) both, guilty of any negligence or breach of duty resulting in injury to Austin; and third, was Austin guilty of contributory negligence. In addition to the arguments presented in his brief, which dealt with those issues, the appellant added a contention at the argument that the construction of the stairway was such as to amount to a trap set by the owners of the property, the Buettners. This contention, we think, was not raised at the proper time and in the proper manner under Rule 39, Section 1 of our Rules and Regulations Respecting Appeals, and it will therefore not be further considered in this opinion. Tawes, Comptroller of the Treasury v. Aerial Products, Inc., Md., 124 A.2d 805.

1. Was the Plaintiff an Invitee or Licensee? Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L.R.A. 714, states the more or less traditional classification of those who go upon the premises of others by consent or invitation as (1) bare licensees or volunteers, (2) those who are expressly invited or induced by the active conduct of the defendant to go upon the premises, and (3) customers and others who go there on business with the occupier. Somewhat different terms are used in §§ 330-332 of the Restatement, Torts, which give these definitions:

§ 330. 'A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission.'

§ 331. 'A gratuitous licensee is any licensee other than a business visitor as defined in § 332.

§ 332. 'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.'

Comment c under § 332 states that 'It is not necessary that the visitor's purpose be to enter into immediate business dealings with the possessor. The benefit to the possessor may be indirect and in the future.'

In Peregoy, Use of Himself & Globe Indem. Co. v. Western Maryland R. Co., 202 Md. 203, 95 A.2d 867, the plaintiff, a truck driver, was injured while working in a railway yard by being thrown from a truck when a freight car was shoved against the truck in the course of a switching operation. The plaintiff's employer had used a part of the railway yard for twenty-five years or so, rent free, for the storage of building materials shipped to it over this railway. The plaintiff was engaged in loading some of such material on his employer's truck when the accident happened. The trial court held that the plaintiff was a bare licensee, but this Court reversed that holding. Chief Judge Sobeloff's opinion defined an invitee or business visitor in much the same terms as are used in § 332 of the Restatement, Torts, saying, at 202 Md 207, 95 A.2d 869: 'An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant.' The Railway Company contended that the work in which the plaintiff was engaged was of no benefit to it; but this Court held that view too narrow, and in speaking of the relationship between the plaintiff's employer and the Railway Company, said: 'The mutuality of the benefits is palpable from the undisputed facts.' Judge Sobeloff also quoted from III Elliott on Railroads, 828, the following: "To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant."

In Gordon Sleeprite Corporation v. Waters, 165 Md. 354, 168 A. 846, a bill collector had gone to the premises of the defendant to collect a bill due to his employer. Finding no one in the office, he crossed a yard and entered the defendant's factory, where he fell down an unprotected elevator shaft. This Court said that when he entered the office of the defendant, he was within his rights and was entitled to all the protections and safeguards of an invitee, but held that he lost that status when he entered a different part of the defendant's premises.

See also 65 C.J.S., Negligence, § 43(1) and 38 Am.Jur., 'Salesmen and Soliciting Agents,' Section 121, page 783, each of which speaks of mutual advantage or interest as a requisite element in establishing that one who goes upon the premises of another is an invitee or business visitor.

The appellant entered Vance's business premises for a business purpose. There is no conflict about that fact, but the appellees contend that the business purpose was that of the appellant and his employer and not that of any of the appellees. The mutuality of interest of the Trust Company on the one hand and of the tavern operator on the other is not so 'palpable' as was that of the building materials dealer and the railroad in Peregoy, Use of Himself & Globe Indem. Co. v. Western Maryland R. Co., supra; yet we think that banking connections and services are of evident actual or potential business advantage or benefit to one engaged in the business of operating a tavern, just as they would be to one operating, say, a general merchandise store or a hardware store. Accordingly, we hold that the evidence would be sufficient to sustain a finding that Austin, the appellant, was a business visitor, and not a mere licensee of Vance's when he undertook to enter the premises leased by Vance's. His position as regards the owners of the premises, the Buettners, will be considered later.

2. Negligence or Breach of Duty Resulting in Injury to Plaintiff. This case is before us on appeal from judgments N.O.V. in favor of the defendant appellees. Accordingly, 'we must assume the truth of all the evidence tending to sustain the suits and of all inferences of fact fairly deducible therefrom, even though such evidence may be contradicted in every particular by opposing evidence.' Rea Construction Co. v. Robey, 204 Md. 94, 97, 102 A.2d 745, 746; Baliles v. Bryant, 207 Md. 332, 337-338, 114 A.2d 601, 603, and cases therein cited.

At the time of the appellant's visit to the building in which Vance's was located, there was a restaurant on the first floor which was operated by persons having no connection with Vance's. Austin first attempted to enter the restaurant, but found the door locked. There was another door separated from that leading into the restaurant by a space of perhaps three or four feet, most of which was taken up by a long, narrow window. Both of these doors opened on a public highway. Austin had had no prior engagement or plan to visit Vance's or the restaurant or any other specific place of business. He was simply going from door to door of business establishments in the Riviera Beach area to solicit customers for his bank. The outer door leading to Vance's Tavern was open and was fastened back across the narrow window. There was also a screen door at the entrance to Vance's, which was closed. Austin opened the screen door, stepped inside and fell down the stairs leading to the tavern.

These stairs came right up to the doorsill. The top of the sill was five inches above the outside sidewalk, and the tread of the topmost step was eight inches below the top of the sill. The sill itself was fourteen inches from the outside to the inside. The stairs were...