Crown Cork & Seal Co. v. Kane

• Decision Date: 01 May 1957
• Docket Number: No. 128,128
• Citation: 131 A.2d 470,213 Md. 152
• Parties: CROWN CORK AND SEAL COMPANY, Inc. v. John J. KANE, etc.
• Court: Maryland Court of Appeals

Page 152

213 Md. 152

131 A.2d 470

CROWN CORK AND SEAL COMPANY, Inc. v. John J. KANE, etc.

No. 128.

Court of Appeals of Maryland.

May 1, 1957.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellant.

Samuel D. Hill, Baltimore (Altfeld & Altfeld, and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HENDERSON, Judge.

This appeal is from a judgment for the plaintiff, appellee, on a jury's verdict in a negligence case. The appellant contends that the court erred in refusing to direct a verdict in its favor, and that there was reversible error in the court's charge to the jury.

The plaintiff was employed by Eastern Motor Express, Inc. as a truck driver's helper. In the course of his employment he had gone to the appellant's warehouse, to pick up or deliver loads, on a number of occasions over a period of years. To reach the loading platform trucks are driven past a guard at the outer gate who checks the purpose of the visit. A shipping clerk, or foreman, having an office at the end of the platform, is in charge of the warehouse and directs the placement of trucks in the yard and against the loading platform. Other employees, known as 'checkers', see that the various materials called for in the shipping documents are loaded or unloaded by employees who operate electrically driven trucks, and their helpers. The material in the warehouse, consisting of corks, bottle tops and similar articles, is stored in cartons piled 'high up' on skids, with longitudinal and lateral aisles about eight feet wide between. No smoking is permitted in the yard, on the loading platform, or in the warehouse, and signs to that effect are posted. However, smoking is permitted in a room in the cellar of the warehouse, at the foot of a stairway, in which there is a large receptacle filled with sand for extinguishing cigarettes. To get to this room from the loading platform it is necessary to go past the office and pass through the warehouse for a distance of about one hundred and sixty feet.

On the day in question, the plaintiff arrived at the warehouse and reported to the shipping clerk. He was told by the shipping clerk that it would be some time before his truck could be loaded and to 'take it easy'. He went through the warehouse to the smoking room as he had often done before. After smoking there for about fifteen minutes, he was returning through the warehouse when he was struck and injured by a loaded fork lift truck that was being backed along an intersecting aisle. Neither the operator of the truck nor the plaintiff saw each other prior to the collision.

Kane testified that he had used the smoking room on perhaps thirty previous occasions. He first learned of it six or seven years ago when one of the checkers told him to go down there, and not to smoke elsewhere. About two months before the accident, he started to smoke on the loading platform and a checker told him to go down in the cellar and smoke. He testified that many of the other truckers habitually used the room. The operator of the fork lift truck testified that he knew that truckers used the room, but that it was mantained for the use of the employees of the company. The foreman of the shipping department testified the smoking room was 'something set up by the Fire Marshal and myself. We recognized the fact that our employees were galavanting all around the place and we could save money by providing an area for them.' It was 'absolutely not' provided for visiting truckers and helpers. He had seen 'some sneak in' and he 'chased them right back out'. The checkers had no authority to offer them the use of the room. If truckers wanted to smoke, they were supposed to go off the company premises.

The appellant does not question the legal sufficiency of the evidence of negligence to present a jury question. Cf. Biggs v. Hutzler Brothers Co., 181 Md. 50, 28 A.2d 609. It contends that on the evidence presented the plaintiff was at most a bare licensee to whom the company owed no duty, except to abstain from wilful or wanton misconduct. The case thus turns upon the status of the plaintiff at the time of his injury. If he was an invitee it is conceded that there was evidence of negligence in striking him. On the other hand, if the plaintiff was only a licensee, it is conceded that the appellee has not made out a case. It is well settled in Maryland that a licensor owes no duty to a licensee, except that, if aware of his presence, the licensor must not injure him wilfully or entrap him. Peregoy, Use of Himself & Globe Indemnity Co. v. Western Md. R. Co., 202 Md. 203, 207, 95 A.2d 867, 869, and cases cited. It was there said that 'A licensee is one privileged to enter another's land by virtue of the possessor's consent, for the licensee's own purposes. * * * An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant.' See also Austin v. Buettner, 211 Md. 61, 66, 80 et seq., 124 A.2d 793, and Restatement, Torts, § 332, defining 'business visitor', the term preferred in the Restatement, as one 'invited or permitted to enter or remain * * * for a purpose directly or indirectly connected with business dealings between them.' In Carroll v. Spencer, 204 Md. 387, 393, 104 A.2d 628, 630, 44 A.L.R.2d 1247, it was held that a child playing in a house under construction, whose presence was known to the watchman, was not an invitee. It was said that 'Acquiscence is not invitation, and at most, changes the status of the trespasser to that of bare licensee, to whom the owner owes no greater duty than to a trespasser.' See also Jackson v. Pennsylvania R. Co., 176 Md. 1, 3 A.2d 719, 120 A.L.R. 1068. It was noted in the Carroll case that Maryland has followed what is known as the Massachusetts rule, which denies that an owner or occupier owes a duty to avoid negligent injury to a trespasser or licensee whose presence is known, rather than the Michigan rule favored by the Restatement.

Smoking is a very widespread habit. The plaintiff clearly came on the premises of the defendant for business purposes in which each party had an interest. The plaintiff was required to wait on the defendant's premises as a matter of convenience to the defendant, and, indeed, he was expressly told to 'take it easy' by the person in charge, and had been told by subordinates, on previous occasions, to use that part of the premises reserved and adapted for the use of those who wanted to smoke. For present purposes we may assume that there was no express invitation because of the alleged lack of authority in the subordinates, although it might well be contended that they had apparent authority to extend an invitation. In Banks v. Montgomery Ward & Co., 212 Md. 31, 43, 128 A.2d 600, 606 it was said: 'It is held generally that an employer cannot escape liability for the acts of his agent by placing limitations on his authority not known to others dealing with him nor properly inferable from the nature of his employment. Lister v. Allen, 31 Md. 543.' We also assume, without deciding, that under Maryland law the mere acquiscence of the subordinates, without more, would place the plaintiff in the status of a licensee, and that there is no distinction, so far as liability to a licensee is concerned, between active and passive negligence on the part of the defendant.

The appellant contends that the appellee was not an invitee or business visitor at the time of his injury, because, in going to and from the smoking room, he was not acting for their mutual benefit, or promoting any business interest of the owner, but acting solely for his own personal pleasure or benefit. This argument overlooks the fact that at least one of the purposes for furnishing the smoking room was to reduce the fire hazard, a purpose that would apply not only to employees but to other persons lawfully upon the premises. The appellee was unquestionably a business visitor when he entered the gate, and he would not lose his status during an enforced period of waiting, unless he ventured into an area that was clearly or obviously reserved for employees. Courtesy and accommodation to employees of regular customers, sent to receive goods, is not unrelated to business advantage. The jury might well have disbelieved the foreman's statement that such employees were supposed to go out into the street to smoke. Since no other waiting room was provided, it is a not unreasonable inference that it was to the company's interest to have waiting visitors use the cellar, where they would not be in the way of other employees, and would not be tempted to smoke in forbidden areas.

The cases that proceed upon the benefit theory rely, in many instances, upon rather remote and indirect benefits. Thus, in Austin v. Buettner, supra, the business visitor entered the premises, a tavern, to solicit business for his employer, a banking institution, with whom the defendant had had no previous dealings. In Peregoy, Use of Himself & Globe Indemnity Co. v. Western Md. R. Co., supra, the plaintiff was injured in a railroad yard while loading material stored there by his employer (a patron of the railroad) free of charge although with the consent of the railroad. Other cases accord the status of invitee to persons returning goods purchased, or reentering premises to retrieve an article left behind. But there is another theory of liability for negligence that does not depend on mutual benefit at all. The cases all recognize that an invitation may be express or implied, and there are many cases in which an invitation has been implied from circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of...