Dabney v. Wexler-McCoy, Inc.

• Citation: 953 S.W.2d 533
• Decision Date: 10 October 1997
• Docket Number: WEXLER-M,No. 06-97-00011-CV,06-97-00011-CV
• Parties: Paul DABNEY, Jr. and Teri Dabney, Appellants, v.cCOY, INC., Appellee.
• Court: Court of Appeals of Texas

Page 533

953 S.W.2d 533

Paul DABNEY, Jr. and Teri Dabney, Appellants, v. WEXLER-McCOY, INC., Appellee.

No. 06-97-00011-CV.

Court of Appeals of Texas Texarkana.

Argued Aug. 19, 1997.

Decided Oct. 10, 1997.

E. Ben Franks, Franks & Grimes, Texarkana, for appellants.

Ralph K. Burgess, Patton, Haltom, Roberts, Texarkana, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

ROSS, Justice.

Paul Dabney, Jr. and Teri Dabney appeal from a judgment denying them damages for physical harm incurred when Paul Dabney, Jr. tripped on a sheet of plywood at Wexler-McCoy's place of business. They contend in three points of error that the trial court erred by asking the jury to decide whether Paul was an invitee or licensee on Wexler-McCoy's premises, by giving the jury an incorrect definition of invitee negligence, and by instructing the jury that "the fact that an accident happens is no evidence that there was an unreasonable risk of such occurrence."

Paul, an employee of Pitney-Bowes, went into Wexler-McCoy's place of business, joining another Pitney-Bowes' employee, Ben Aultman, who was attempting to repair a scale postage system. It appears that Paul went to this location at the repairman's request and that his purpose in going there was either to explain to Wexler-McCoy why the scale was inadequate or to sell Wexler-McCoy a new piece of equipment. While there, he walked around the table holding the scales. The table was mounted on a piece of 3/4-inch plywood nailed to the floor. He caught his foot on the plywood and fell. The fall injured Paul's back. The evidence shows that he has been unable to work since that time and that he has incurred over $30,000.00 in medical bills and has undergone surgery in failed attempts to alleviate the problem.

The case was submitted to the jury on alternative theories of licensee or invitee liability. The jury found that Paul was a licensee and that Wexler-McCoy was not negligent. Based upon these findings, the trial court rendered a take-nothing judgment against the Dabneys.

The Dabneys first contend that the trial court erred by improperly submitting an issue to the jury asking it to decide whether Paul was an invitee or a licensee. At trial, as here, the Dabneys argued that the issue should not go to the jury because the evidence permitted only a single answer: that Paul was an invitee. The question is critical because the jury's determination that Wexler-McCoy was not negligent was based upon licensee standards, which are higher and more difficult to meet than are invitee standards.

Whether evidence is legally sufficient to support submission of a theory is a question of law to be reviewed de novo by an appellate court. A trial court is obligated to submit a question if the evidence supporting the question amounts to more than a scintilla. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). In reviewing the evidence, we are to consider the evidence most favorably on behalf of the party who submitted the issue. Id.

In the present case, Wexler-McCoy contends that the following evidence is sufficient to support submission of the question to the jury:

(1) Wexler-McCoy did not explicitly invite Paul--but rather the repairman--to repair a broken Pitney Bowes machine.

(2) The invitation came from the repairman, not Wexler-McCoy.

(3) A bookkeeper for Wexler-McCoy who sent Paul to the room where the repairman was did not invite him to enter, but merely informed him where Aultman was working.

The question is whether this evidence provides proof that would properly permit the court to send an issue to the jury. In reviewing the question of whether this evidence requires a single result, we look to see if the definition of invitee has been met as a matter of law. An "invitee" is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Silva v. Spohn Health Sys. Corp. d/b/a Spohn Hosp., 951 S.W.2d 91 (Tex.App.-Corpus Christi 1997, n.w.h.); Texas Power & Light Co. v. Holder, 385 S.W.2d 873, 885 (Tex.Civ.App.-Tyler 1964), writ ref'd n.r.e., 393 S.W.2d 821 (Tex.1965).

In this case, it is clear that Aultman, the repairman, had an express invitation to enter the premises to repair a malfunctioning piece of equipment. Aultman called Paul to come and help him--perhaps not by aiding in the repair itself, but by helping to explain to Wexler-McCoy what changes might be best for its business or alternatively to explain why the problem could not be fixed in that particular situation.

An express invitation in this context is not necessarily limited to a specific individual, but extends as an implied invitation to those others whose presence is reasonably required to achieve the goal desired by the owner. In this case, the repairman sought assistance in servicing the equipment, which might have extended to a replacement. Paul's response to the owner's need constitutes an entry pursuant to an implied invitation as a matter of law.

We conclude that the evidence permits only a single result and that there is no evidence that could be construed to permit a question on this issue to be submitted to the jury. As the jury erroneously concluded from this legally inadequate evidence that Paul was a licensee in answer to the question, the wrong legal standards were then used in determining liability. This constitutes error that certainly would cause rendition of an improper...