Bessette v. Ernsting
| Decision Date | 11 July 1942 |
| Docket Number | 35465. |
| Citation | 155 Kan. 540,127 P.2d 438 |
| Parties | BESSETTE v. ERNSTING et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 14, 1942.
Syllabus by the Court.
A "licensee" is a person privileged to enter or remain on land by virtue of the possessor's consent whether given by invitation or permission.
A "business visitor" is a person who is invited or permitted to remain on land in possession of another for a purpose directly or indirectly connected with business dealings between them.
Where sign painter went to pop bottler's place of business to solicit some sign painting business, and about two weeks later bottler called painter to the place of business by telephone to estimate the cost of hanging a sign, painter was a "business visitor" and bottler was under an affirmative duty to protect the painter, not only against dangers of which bottler was aware, but also against those which with reasonable care he might have discovered.
In testing the sufficiency of evidence as against a demurrer court will consider plaintiff's evidence as true disregard that unfavorable to plaintiff, and not weigh any part that is contradictory, or any differences between plaintiff's direct examination and cross-examination and, if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.
In action against pop bottler by sign painter, who was a business visitor, to recover for injuries sustained by painter when a tank fell on his hands, evidence was insufficient to establish as against demurrer, that pop bottler violated any duty to protect painter as a business visitor on the premises.
Proof of negligence cannot rest on mere conjecture, but must be established by competent evidence.
1. 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.
2. 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.
3. In testing the sufficiency of evidence as against a demurrer, court will consider plaintiff's evidence as true, disregard that unfavorable to plaintiff, and not weigh any part that is contradictory, or any differences between plaintiff's direct and cross-examinations, and, if so considered, there is any evidence which sustains the plaintiff's case, the demurrer should be overruled.
4. Proof of negligence cannot rest on mere conjecture, but must be established by competent evidence.
5. In an action for damages for personal injuries the record is examined and held, the demurrer to plaintiff's evidence was properly sustained.
Appeal from District Court, Sedgwick County, Division No. 2; Robert L. NeSmith, Judge.
Action by Phil Bessette against A. F. Ernsting, a sole trader doing business as the Cleo Vess Bottling Company, to recover for injuries sustained by the plaintiff on the defendant's premises, allegedly because of the negligence of the defendant. From an adverse judgment, the plaintiff appeals.
Judgment affirmed.
Clarence R. Sowers, of Wichita (Claude E. Sowers and Byron Brainerd, both of Wichita, on the brief), for appellant.
Vincent F. Hiebach, of Wichita (William J. Wertz and Milton Zacharias, both of Wichita, on the brief), for appellee.
This was an action for damages for personal injuries. The trial court sustained a demurrer to the evidence of the plaintiff. Plaintiff appeals.
The plaintiff is a sign painter. The defendant Ernsting was engaged in the soda pop bottling business in Wichita. About two weeks prior to April 16, 1940, the defendant was moving his equipment into a vacant building in that city. Plaintiff knew the building had been vacant and when he saw a new tenant was moving in, stopped to solicit some sign painting business. On April 16, 1940, in response to a telephone call, plaintiff again went to defendant's place of business. The petition alleged that plaintiff went to the rear of defendant's place of business; that defendant showed the plaintiff where a sign was crated and leaning against the wall; that plaintiff was to take the sign out of the crate, and that defendant told plaintiff where he could lay the sign on the floor to measure and estimate the cost of hanging it. It was alleged that near the place where plaintiff was working there were two large carbonic gas drums; that defendant knew where plaintiff was working and what he was doing; that as "defendant was attempting to roll a tank on a truck in the vicinity of these tanks which he knew were near the place where plaintiff was working, and defendant, in rolling said tanks on said truck, near said gas drums, did negligently, willfully and wantonly strike one of said gas tanks he was operating, knocking said gas tank over and upon the plaintiff, causing said carbonic gas drum to fall upon the left hand of this plaintiff," causing severe injuries complained of in the petition. It was alleged that "all of the alleged acts of negligence and carelessness and wantonness on the part of the said defendant, were the direct, controlling and proximate cause of this plaintiff's injuries and damages."The court sustained a demurrer to plaintiff's evidence on the ground that the "evidence showed that plaintiff was a licensee and failed to prove a cause of action against defendant."
Plaintiff contends he was an invitee or business visitor and entitled to the protection the law gives to persons who enter premises in the possession of others as a business visitor. Defendant asserts the plaintiff while on the premises in question was a mere licensee and the defendant owed him no duty except to refrain from willfully or wantonly injuring him.
In Restatement, Torts, § 330, a licensee is defined: "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." See Toomey v. Wichison Industrial Gas Co., 144 Kan. 534, 61 P.2d 891.
In Restatement, Torts, § 332, a business visitor is defined "A business visitor is a person who is invited or permitted to enter or remain or land in the possession of another for a purpose directly or...
To continue reading
Request your trial
-
Bowers v. Ottenad
...Petroleum Co., 187 Kan. 448, 357 P.2d 748 (1960); Steinmeyer v. McPherson, 171 Kan. 275, 232 P.2d 236 (1951); Bessette v. Ernsting, 155 Kan. 540, 127 P.2d 438 (1942). It has long been said bad facts make bad law. Here, the facts take place in a suburban setting where the main activity invol......
-
Ralls v. Caliendo
...duty to refrain from willfully, intentionally or recklessly injuring him.' (Syl. 3, 4.) (Emphasis supplied.) See, also, Bessette v. Ernsting, 155 Kan. 540, 127 P.2d 438; Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P.2d 748, 94 A.L.R.2d 1; Hogan v. Hess Construction Co., 187 Kan. 559......
-
Hendrix v. Phillips Petroleum Co.
...in the possession of another for a purpose directly or indirectly connected with business dealings between them. (Following Bessette v. Ernsting, 155 Kan. 540, 127 P.2d 438.) 2. Independent contractors on property as business visitors or invitees of the possessor thereof owe a duty to exerc......
-
Smith v. Bassett
...v. Snyder, 143 Kan. 34, 53 P.2d 472; Crowder v. Williams, 116 Kan. 241, 226 P. 774, and some decisions from other jurisdictions. In the Bessette case plaintiff's evidence disclosed defendant had reason to anticipate plaintiff's presence in the immediate vicinity of the accident. In the Hend......