Book v. Heath

• Decision Date: 15 December 1915
• Docket Number: (No. 5551.)
• Citation: 181 S.W. 491
• Parties: BOOK v. HEATH.
• Court: Texas Court of Appeals

181 S.W. 491

BOOK v. HEATH.

(No. 5551.)

Court of Civil Appeals of Texas. San Antonio.

December 15, 1915.

Rehearing Denied January 10, 1916.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by E. M. Heath against D. D. Book. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Arnold, Cozby & Peyton, of San Antonio, for appellant. O. M. Fitzhugh, of San Antonio, for appellee.

FLY, C. J.

This is an action for damages instituted by appellee against appellant, and a trial of the cause resulted in a verdict and judgment for appellee in the sum of $2,500. It was alleged in the petition that appellant was the owner of a certain four-story store and office building on Houston street, in the city of San Antonio, known as the "Book Building"; that appellee was a real estate agent, and had his office in a room on the second floor of that building, which room he rented from appellant; that on the rear of the ground floor there was a back gallery from which a stairway led to the back yard, which extended to the river; that on or about June 19, 1914, appellee, desiring to take his two minor sons and two other boys down to the river to bathe, asked the agent of appellant in charge of the building how he and the boys could reach the river from the rear of the building, and was informed about the rear stairway, to which access was obtained through a pool room on the ground floor; that appellee went through the pool room, used the stairway in reaching the river, and attempted to return to his office, and while ascending the staircase it fell, and he was injured. The negligence is alleged to consist in the invitation of appellant to appellee to use an unsafe and defective stairway.

Appellee was either a licensee or a party invited to use the stairway on the occasion of his fall and consequent injury. If he was a mere licensee, he was using the stairway on the passive consent of the owner. If, however, appellee was using the stairway at the request, solicitation, or desire of the owner, then he was there upon the invitation of the owner, and a different relation from that of a licensee would be established between him and the owner. An owner owes to a licensee no duty as to the condition of the premises, unless duties are imposed by statute, except to not permit him to encounter a hidden peril known to the owner, or to willfully cause him harm; but as to one invited he is under the obligation to maintain the premises in a reasonably safe and secure condition. An invitation may be express, as when the owner in terms invites another to come upon the premises, or make use of it or something thereon, or it may be implied when the owner by acts or conduct leads another to the belief that such use is not only acquiesced in by the owner, but is in accordance with the intention or design for which the way or place or thing was adapted, prepared, and allowed to be used. Beehler v. Daniels, 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790; Turess v. Railway, 61 N. J. Law, 314, 40 Atl. 614; Furey v. Railway, 67 N. J. 270, 51 Atl. 505; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Sesler v. Coal Co., 51 W. Va. 318, 41 S. E. 216.

It is easy to formulate and promulgate general rules of law, but difficulties and perplexities arise in the application of such rules to the facts of the concrete case presented for solution or decision, and those difficulties are often augmented by the obtrusion of matters into it that, while they seemingly have connection with it, in truth and fact should not enter into consideration. In this case the fact that appellee was the lessee of a room on the second floor of the building was considered by court and jury as a factor in arriving at a conclusion as to a decision in the case. The case should be considered as though appellee had merely entered the building with the intent of asking permission to leave the building by the back stairway for the purpose of taking his boys to the river to take a bath. The evidence fails to indicate that appellee had any more rights in connection with the back stairway than any other person from the street who might have asked for permission to use it. It was in no way connected with his office, and did not constitute a way of egress or ingress thereto. In order to reach it, a pool room rented by another man had to be used. The entrance to the offices was through a front door to an elevator or front staircase. The evidence fails to indicate that use of stores which were rented to other men and use of the back stairway was in contemplation of the parties when the rental contracts for offices were entered into, but the evidence does show that the back stairway was for the benefit of those who rented the stores on the ground floor and who might for the purposes of their business desire to use the yard in the rear of the building. There is no pretense that appellee desired to use the stairs for any purpose connected in the remotest degree with the uses for which the office was rented. That he had to use the stairway in order to get back to the office after the swimming party was over could offer no reason or excuse for his use of the stairs. If he had not used the stairs for a purpose utterly foreign to the object for which his office was rented and for his own and the pleasure of the boys, he would not have been in a position to need the back staircase to get back to...