Bishop v. Stewart

• Decision Date: 24 November 1958
• Docket Number: No. 40895,40895
• Citation: 234 Miss. 409,106 So.2d 899
• Court: Mississippi Supreme Court
• Parties: Mrs. F. L. BISHOP v. Cecil STEWART, United Gas Corporation & Louisiana-Mississippi Pipe Line Construction Corporation.

Page 899

106 So.2d 899

234 Miss. 409

Mrs. F. L. BISHOP v. Cecil STEWART, United Gas Corporation &

Louisiana-Mississippi Pipe Line Construction

Corporation.

No. 40895.

Supreme Court of Mississippi.

Nov. 24, 1958.

Arrington & Arrington, Hazlehurst, for appellant.

Henley, Jones & Henley, Hazlehurst, Young, Daniel & Coker, Jackson, for appellees.

GILLESPIE, Justice.

The trial court sustained a demurrer to the declaration, the plaintiff declined to plead further, the suit was dismissed, and plaintiff-appellant appeals.

The declaration alleges that appellant lives 1,000 feet north of the City of Hazlehurst, Mississippi, on the west side of Highway 51. Her husband operates a cafe, service station, and tourist court on the south end of a large commercial lot which lies adjacent to and south of appellant's home lot, the two lots being separated by a row of short posts. The area of the commercial lot between the plaintiff's home lot and the business establishments is vacant and graveled. For five years prior to August 21, 1957, plaintiff frequently passed from her home to her husband's business establishments, both in the daytime and at night, to assist her husband in his businesses, and during that time used a path which was well worn and noticeably well travelled from appellant's house to where it enters the graveled commercial lot. Plaintiff's husband granted one of the appellees permission to store several large truck loads of long steel pipe of various sizes, and other equipment, on the vacant portion of the husband's commercial lot; and pursuant to this permission, on August 19, 1957, one of the appellees unloaded the several large truck loads of pipe and equipment on the vacant portion of said commercial lot. The steel pipe was stacked about two feet high with the lengths running east and west and blocked the path from appellant's house to the business establishments on the south of the commercial lot, that portion of the path from the house to the commercial lot being 'visibly well traveled.' Appellees were jointly 'in charge of so much of the premises of F. L. Bishop (appellant's husband) as the pipe and equipment stored by them occupied from August 19, 1957, to August 21, 1957,' when, after dark, plaintiff started to her husband's business establishments using the path already mentioned. In the darkness she fell over the stacked pipe, broke a bottle of 'Pine-sol' she was carrying, and was severely injured. It is charged that appellees were negligent by (a) blocking the path which appellees knew, or should have known, was traveled several times daily by plaintiff and others; (b) negligently failing to erect rails or barricades around said pipes; (c) failing to place warnings or lights around said stack of pipes, there being no other lights illuminating the area where the pipe was stacked. It is not charged that the path was a public one.

In view of the conclusions we have reached, it is not necessary to decide whether the appellees were guilty of simple negligence under the allegations of the declaration. We assume, without deciding, that they were. But the declaration does not attempt to charge wilful or wanton negligence.

It is settled law that the owner or occupant of land or premises owes no duty to a licensee entering upon the premises except not to harm him wilfully or wantonly. 38 Am.Jur., Negligence, Sec. 104; Cato v. Crystal Ice Company, 109 Miss. 590, 68 So. 853; Yazoo & M. V. R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Kelley v. Sportmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785; Roberts v. Mississippi Power and Light Company, 193 Miss. 627, 10 So.2d 542; Graves v. Massey, 227 Miss. 848, 87 So.2d 270.

Since no one disputes that the law is as just stated, the only problem in this case is to determine whether the relationship of the appellant to appellees and the premises occupied by appellees is such as to bring the case within the rule. This presents two questions: (1) Whether appellees were such occupants of the premises used by them as to entitle them to invoke the rule, and (2) whether appellant was a licensee.

The declaration alleges that appellees stored several large truck loads of pipe on the vacant portion of the commercial lot whereon appellant's husband operated his business enterprises, and that the appellees 'were in charge of so much of the premises of F. L. Bishop as the pipe and equipment stored there by them occupied.' The appellees were occupiers of the premises to the extent in area that the pipe and equipment covered. They occupied these premises with permission; the occupancy was lawful.

It is not pertinent to the issue to determine the kind of estate appellees had in the premises occupied by them. It is said on good authority that 'Ordinarily, in the absence of a statute fixing a different rule, the occupation of premises without rent and without any certain and definite term being fixed, gives rise to a tenancy at will. Thompson on Real Property, Sec. 1023. But a tenancy at will and a license to occupy, while not identical because a license confers no title or interest in the land, are of the same nature. Ibid., Sec. 1084. Whether a tenancy at will or a license, the occupancy is lawful, and the distinction is immaterial in determining whether an occupant of premises is entitled to invoke the rule that an occupant of premises owns no duty to a licensee except not to harm him wilfully or wantonly.

'An occupant entitled to invoke the rule need not be an owner or lessee of the premises.' 38 Am.Jur., Negligence, Sec. 104. See Annotation, 90 A.L.R. 886. There seems to be no authority holding that the extent of the area occupied has any bearing on the question. On the other hand, one permitting, but not inviting, the use of a specific item of equipment, such as a scaffold, has been held entitled to invoke the rule. Arthur v. Standard Engineering Company, 89 U.S.App.D.C. 399, 193 F.2d 903, 32 A.L.R.2d 408. Other cases holding that the lawful occupier may invoke the rule are Soles v. Ohio Edison Company, 144 Ohio St. 373, 59 N.E.2d 138; Lindholm v. Northwestern Pac. R. Co., 79 Cal.App. 34, 248 P. 1033; Helvich v. George A. Rutherford Co., 96 Ohio App. 367, 114 N.E.2d 514; and McCann v. Thilemann, 36 Misc. 145, 72 N.Y.S. 1076.

We conclude that, inasmuch as appellees were the lawful occupants of that portion of the lot used in storing the pipe and other equipment, they are entitled to invoke the rule that they owe no duty to a licensee except not to harm him wilfully or wantonly.

In resolving the question whether appellant was a licensee when she went upon the premises occupied by appellees, it must be kept in mind that her status is determined by her relationship to appellees and the premises they were occupying and not by her relationship to her husband and the property used in his businesses. It confuses the issue to say that, since she was crossing her husband's lot to reach her husband's place of business on the south side of the lot to perform work for her husband, she was an invitee. The lawful occupation of the premises by appellees, or so much thereof as they did occupy, was independent of the relationship of appellant to the owner, who happened to be her husband, and as one performing services for her husband; and no authority has been cited holding that the rights or status of appellees are in any way altered by the relationship of appellant to her husband, the owner, who gave appellees the right to occupy the premises.

'A licensee is broadly defined as a person who enters upon the property of another for his own convenience, pleasure, or benefit.' 38 Am.Jur., Negligence, Sec. 104. In Cato v. Crystal Ice Company, 109 Miss. 590, 68 So. 853, the Court said: 'In this instance it is not contended that the plaintiff was invited, or that he had any business with the defendant which would give him a legal right to go on the premises.'

Invitees are in a more favored position with reference to the duties and liabilities of the owner or occupier than are licensees and trespassers. There is no allegation the appellant was invited, either directly or impliedly, to go upon the part of the lot occupied by appellees. On the other hand, the declaration plainly shows that she did so for her own convenience solely. Cf. Yazoo & M. V. R. Co. v. Mansfield, supra, and Graves v. Massey, supra.

We conclude that appellant was a licensee.

It should be noted that this case is not one involving a dangerous pitfall or trap, nor one where the possessor or occupier of land creates or maintains thereon an excavation or other artificial condition so near an existing public roadway or other public way, so as to endanger persons traveling the public way. See Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379.

We recognize the rule that close and doubtful questions of law and right should not be settled on demurrer, but in the case before us there is nothing doubtful either as to the status of appellees as occupiers of the property or the purpose of appellant in going upon the part of the premises occupied by appellees.

Affirmed.

ROBERDS, P. J., and KYLE and ETHRIDGE, JJ., concur.

McGEHEE, C. J., and HALL, LEE and HOLMES, JJ., dissent.

ARRINGTON, J., took no part.

McGEHEE, Chief Justice (dissenting).

I regret that I am unable to agree with the controlling opinion rendered in this case, but I feel justified in dissenting therefrom because of the unusual factual situation disclosed by the declaration of the plaintiff which I think sufficiently states a cause of action against the defendants.

The declaration alleged that the plaintiff lived on the northern most of...