Carlisle v. J. Weingarten, Inc.

• Decision Date: 04 June 1941
• Docket Number: No. 7504.,7504.
• Citation: 152 S.W.2d 1073
• Parties: CARLISLE v. J. WEINGARTEN, Inc.
• Court: Texas Supreme Court

152 S.W.2d 1073

CARLISLE v. J. WEINGARTEN, Inc.

No. 7504.

Supreme Court of Texas.

June 4, 1941.

Error to Court of Civil Appeals of First Supreme Judicial District.

Personal injury action by Ella Jo Carlisle by next friend, W. J. Carlisle, against J. Weingarten, Incorporated. A judgment for defendant was affirmed by the Court of Civil Appeals, 120 S.W.2d 886, and plaintiff brings error.

Reversed and remanded with directions.

W. H. Hanson and B. C. Johnson, both of Houston, for plaintiff in error.

Wood, Morrow, Gresham & McCorquodale, of Houston, for defendant in error.

ALEXANDER, Chief Justice.

The plaintiff, Ella Jo Carlisle, a minor, went with her mother to defendant's grocery store, and while there fell over a box of groceries that had been left in the aisle by the defendant's employee, and was injured thereby. She brought suit by next friend against the defendant, J. Weingarten, Inc., a corporation, for damages for the injuries sustained by her. The trial court concluded that since plaintiff had not entered the store as a prospective purchaser she was a mere licensee, and since defendant's employee had not wilfully or wantonly injured her, the defendant was not liable. Hence a verdict was instructed for the defendant. The Court of Civil Appeals affirmed the judgment of the trial court. 120 S.W.2d 886.

It is settled by the law of this State that if the plaintiff was on the premises as an invitee, it was the defendant's duty to exercise ordinary care to keep its premises in a reasonably safe condition, so that the plaintiff would not be injured; and that if the defendant failed so to do, it would be liable for the damages proximately caused thereby. Kallum v. Wheeler, 129 Tex. 74, 101 S.W.2d 225. On the other hand, if plaintiff was on the premises merely as a licensee, the only duty that the defendant owed her was not to injure her wilfully, wantonly, or through gross negligence. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 8 Am. St.Rep. 611; Dobbins v. Missouri, K. & T. Ry. Co., 91 Tex. 60, 41 S.W. 62, 38 L.R.A. 573, 66 Am.St. Rep. 856.

It is not contended that the evidence raises any issue of wilfullness, wantonness, or gross negligence on the part of defendant's employee. Consequently, the material question to be determined is whether plaintiff was on the premises of the defendant as an invitee or as a mere licensee.

There was evidence sufficient to support the following facts: On the occasion that the plaintiff received her injuries, and for several years prior thereto, the defendant was conducting, and had conducted, a retail store in the city of Houston. In such store groceries and other merchandise were sold to the general public. It was operated on what is generally known as the cash and carry plan. The general public, including many women, traded in the store. It was customary for such customers, especially the women, to bring their children along with them to the store. The defendant offered no objections to this practice. On the occasion in question, Mrs. Carlisle, the mother of the plaintiff, went into the defendant's store to purchase a bill of groceries. She was accompanied by the plaintiff, then eight years of age, and by a small son about six years of age. Mrs. Carlisle walked along one of the aisles of the store, selecting goods which she expected to purchase. Plaintiff followed along behind her. While doing so the plaintiff fell over or across a pasteboard box full of canned goods, which had been left in the aisle by one of the defendant's employees, and was seriously injured. There was sufficient evidence to justify a finding that defendant's employee was negligent in leaving the box of groceries in the aisle. The plaintiff was not in the store to make a purchase, but was there solely because her mother carried her there. Her mother carried her and her brother to the store because she did not have anyone else to leave the children with at home. Mrs. Carlisle had been trading at the store about three years, and had been in the habit of taking the children to the store with her on such occasions. The servants and employees of the defendant knew this, and offered no objection. They also knew that the children were with Mrs. Carlisle in the store on the occasion in question.

The conclusion of the trial court and the Court of Civil Appeals that the plaintiff was a mere licensee, and not an invitee, was based on the fact that at the time plaintiff entered the premises she had no intention to purchase any of the defendant's merchandise. There are authorities which support this contention and hold that where a child of tender years accompanies its parents to a store, without any intention on the part of the child to make a purchase, such child, as a matter of law, is a mere licensee, and not an invitee. Petree v. Davison-Paxon-Stokes Co., 30 Ga.App. 490, 118 S.E. 697; Fleckenstein v. Great A. & P. Co., 91 N.J. 145, 102 A. 700, L.R.A.1918C, 179; Mosher v. Anton G. Hanson Co., 193 Minn. 115, 258 N.W. 158.

We think, however, that it is too strict a construction to say that the status of such a child depends entirely on whether it entered the premises with the intention of purchasing some of defendant's merchandise. Whether it intended to make a purchase is not the essential fact to be considered in determining whether it was an invitee or a mere licensee. The most essential factor to be considered in determining this issue is whether the premises were public or private. If one uses his premises for private purposes, he has no reason to expect visitors other than those especially invited by him; and hence is under no obligation to keep his premises in a safe condition for the protection of those who may enter thereon without his invitation....