Braswell v. Economy Supply Co.

• Decision Date: 29 June 1973
• Docket Number: No. 47108,47108
• Parties: Allen BRASWELL v. ECONOMY SUPPLY COMPANY.
• Court: Mississippi Supreme Court

Page 669

281 So.2d 669

Allen BRASWELL v. ECONOMY SUPPLY COMPANY.

No. 47108.

Supreme Court of Mississippi.

June 29, 1973.

Rehearing Denied Sept. 11, 1973.

Crisler & Crisler, Jackson, Zachary, Weldy & Ingram, Giles W. Bryant, Jolly W. Matthews, III, Hattiesburg, for appellant.

Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellee.

SUGG, Justice:

Appellant filed suit against appellee in the Circuit Court of Forrest County, Mississippi and alleged that he was a business invitee of appellee and was injured when a stack of lumber fell upon him as a direct and proximate result of appellee's negligence in stacking the lumber and failing to warn him of the danger. Appellee answered, denied negligence or liability, and alleged that appellant was a trespasser, or at most, a mere licensee; that his injuries were caused by his negligence in climbing on the stack of lumber causing it to fall; and that appellant assumed the risk of entering the bin where the lumber was stacked. The jury found for the appellee; hence this appeal.

A few days before April 29, 1970, appellant asked appellee's salesman, Truett Weatherford, if appellee had any 2 6 cedar lumber which appellant needed to build an exposed deck or porch on a fishing camp for one of his customers. On the morning of April 29th, appellant entered appellee's sales room where Weatherford was engaged in making up an order for another customer. Appellant stated that he desired to inspect the cedar; and in response thereto the salesman told him to 'go ahead and look' pointing in the direction of the lumber shed where the cedar was stored. Appellant did not wait for the salesman to go with him and show him the lumber but proceeded alone to the lumber shed.

The lumber shed was built parallel to a railroad track and was designed and constructed so as to consist of a series of double doors facing the railroad track. Each set of double doors was approximately 10 feet wide and immediately behind each set of double doors were bins for the storage of lumber, each of which was the width of the door openings. The lumber bins consisted of vertical poles set into the ground on each side of the bins. The bins had no floor, but crossties were placed on the ground parallel with the railroad track about four or five feet apart on which lumber was stacked perpendicular to the railroad track, resting on the crossties so as to keep it off the ground. Lumber was stacked in the bins solid from side to side between the vertical posts with the ends of the boards just inside the double doors far enough to permit them to be closed.

Lumber was stacked in the various bins in the lumber shed according to size and in the particular bin in question, 2 6 cedar was stacked. The lumber was of various lengths with each length being stacked so that all 16 foot lengths were in adjacent stacks, all 14 foot lengths were likewise in adjacent stacks and other lengths in other stacks. The cedar lumber in question arrived by rail about two months before the accident and was stacked in the bin extending from the crossties upward to a point near the ceiling, approximately 10 or 11 feet high. The bin was fully loaded with the top of the stacks nearly level and with the lumber stacked in the usual and customary manner. Sales of different lengths of lumber were not at a uniform rate because some lengths sold faster than others so that the top of the stacks in the bin did not remain at a level or uniform height. The 16 foot lengths occupied the right hand portion of the bin and sold more slowly than the other lengths; therefore, those stacks remained higher than the other stacks, and on the day of the accident was about 8 feet high, according to the testimony of appellant. Appellant testified that immediately to the left of the 16 foot lengths, as one looked into the bin, there was no lumber on the crossties and he walked on the ground when he entered the bin with the high stack on his right and a lower stack on his left. According to the testimony of appellee, the lumber stack was approximately 24 to 30 high at the place where appellant entered the bin and immediately to the left was a stack approximately 40 high.

Appellant testified that he walked 10 or 15 feet into the bin by way of an aisle or passageway between the stacks of lumber, but appellee refuted this, claiming that the bin had no aisle or passageway, and appellant entered the bin by climbing on a stack of lumber. Appellant maintained that he was standing on the ground when lumber fell on him and injured him, but appellee's proof was that appellant must have climbed on a stack of lumber because lumber was stacked from one side of the bin to the other with no space between the stacks.

The lumber shed was constructed so that lumber could be loaded and unloaded from the outside without the necessity of entering the bins. According to appellee's version of the facts it was not necessary to enter the lumber shed or climb upon a stack of lumber in order to inspect the lumber, but all one had to do was to look into the bin for visual inspection of a particular piece of lumber, and, if a closer inspection was desired, this could be accomplished by pulling the piece of lumber out of the bin. Employee of appellee loaded and unloaded lumber while standing outside the bins and the same was true on occasions when a customer was permitted to unload his own lumber.

Appellant contends that the verdict of the jury was contrary to and against the overwhelming weight of the evidence and the lower court erred in refusing to grant him a new trial. We do not reach this question because this case must be reversed for erroneous instructions given on behalf of appellee.

Appellant next contends that the trial court erred in granting instructions numbered 5 ¹ and 5-A ². Appellee argues that the instructions were proper because we have adopted the historical distinction between trespassers, licensees and invitees, and the status of appellant was changed from invitee to licensee by his actions.

In Astleford v. Milner Enterprises, Inc., 233 So.2d 524 (Miss.1970), this Court reaffirmed this distinction as follows:

Proposition I in the language of the appellant is as follows: 'The trial court erred in holding that the appellant was a mere licensee and that the only duty owed to appellant by appellees was to refrain from wilfully or wantonly injuring her.' Appellant concedes that this Court has adopted the historical distinction between trespassers, licensees, and invitees and that if these concepts are followed in this case it is undoubtedly true that appellant was, at best, a mere licensee. Appellant strongly insists that we should abandon, at least for the instant case and cases like it, these traditional concepts. It is pointed out that at least two states, California and Hawaii, have already done so. We have read and considered the authorities cited by appellant and, although they are persuasive, we are not convinced that we should at this time abandon our well-established distinction between persons on property of another and the duty the possessor of the premises owes to such persons. The standard adopted by the Hawaiian court in Pickard v. City and County of Honolulu, (51 Haw. 134,) 452 P.2d 445 (1969) appears to be very simple. The standard adopted by that court is as follows:

(T)hat an occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises regardless of the legal status of the individual.

(452 P.2d at 446).

After a careful consideration and study of this rule we can envision many problems in its application and we do not think conditions have changed to such an extent that we should adopt this rule at this time. (233 So.2d at 525.)

Since the distinction set forth in Astleford is recognized in Mississippi, appellee contends that the instructions were properly granted because, although one may enter premises in the status of an invitee, he may lose such status and acquire that of a licensee, if not that of a trespasser, if he exceeds the scope or purpose of his invitation by proceeding into or through an area not included in the invitation. 62 Am.Jur.2d Premises Liability § 54 (1972), 65 C.J.S. Negligence § 64(4) (1966).

Appellee relies on Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (1963); Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960); Kelley v. Sportmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955), which hold that a licensee, or a trespasser, cannot recover for injuries received on another's premises in the absence of proof of willful or wanton injury.

In Dry, this Court held that plaintiff was a business invitee when he entered defendant's garage for the purpose of having repair work performed on his truck, but when he remained at his own election to perform the repair work with permission of the shop foreman because no merchanics were available at that time, he lost his status of invitee and the rights which accompany that state and became a licensee.

In Langford, plaintiff entered a laundry center where coin-operated washing machines were available to the public, and, upon noticing her husband approaching the building, hurriedly left the premises, not through the public door which she entered, but through a storeroom, which was leased to another party, and thence out the back door where she ran off a truck loading ramp and fell to the ground, severely injuring herself. This Court held that peremptory instructions should have been granted in favor of the owner of the laundry center and the lessee of the storeroom because plaintiff exceeded the limits of her invitation when she attempted to exit over the premises of the lessee of the storeroom and that she was a gratuitous licensee as to the premises over which she fled.

In Selby, a newspaper distributor had permission to deliver papers in a...