Farmers Gin Co., Inc. v. Leach

Decision Date07 June 1937
Docket Number32798
Citation174 So. 566,178 Miss. 784
CourtMississippi Supreme Court
PartiesFARMERS GIN Co., INC., v. LEACH

Division B

Suggestion Of Error Overruled July 1, 1937.

APPEAL from the circuit court of Madison county HON. JULIAN P ALEXANDER, Judge.

Action by Mrs. Laura K. Leach against the Farmers Gin Company, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, Powell & Powell and Ray & Spivey, all of Canton, for appellant.

The deceased was not an invitee with respect to the place he was injured, but at best a licensee and to whom appellant owed no duty other than to refrain from wilful and wanton injury.

Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Y. & M. V. R. R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; Ingram-Day Lbr. Co. v. Harvey, 98 Miss. 11, 53 So. 347.

Evans, the ginner, had no authority whatsoever to bind this appellant so as to make Leach the legal invitee of appellant.

We, therefore, earnestly submit that Evans was utterly without any authority from appellant to extend any permission to Leach to come inside the gin house, and the master is not liable for any resultant injury therefrom.

Robertson v. Y. & M. V. R. R. Co., 152 Miss. 333, 118 So. 181; Vargas v. Blue Seal Bottling Works, 126 So. 707; McCarty v, Mitchell, 169 Miss. 82, 151 So. 567; Lawand v. California Products Co., 48 P.2d 979; Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858.

There was no possible reason or justification for Mr. Leach having entered into the gin house where the machinery and electric motor was situated. He doubtless did enter solely to see what was going on, or out of curiosity, but this by no means is sufficient to create the status of invitee with respect to this appellant. If the judgment of the lower court is correct, it would mean that in and about the thousands of places where dangerous machinery is necessarily maintained and repair work going on that any third person permissively entering the premises at the instance of an employee, and receiving injuries while thus engaged, could hold the owner liable in the absence of wilful and wanton injury. Such a rule, we respectfully submit, would be both unreasonable and unjust and impose upon the owner a burden which he is not called upon under the law to carry.

Castonguary v. Acme Knitting Machine & Needle Co., 136 A. 702; A. L. I. Restatement, Torts, page 940; Restatement Agency, page 544; McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877; Trico Coffee Co. v. Clemens, 168 Miss. 748, 151 So. 175.

Assuming solely for the sake of the argument that the deceased was an invitee, his fatal injuries were occasioned alone by reason of his own voluntary exposure to danger at a time when he was as fully acquainted with the situation as anybody else.

20 R. C. L. 56, par. 52; A. L. I., Restatement, Torts, page 930; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Shafer v. Tacoma Eastern R. Co., 157 P. 485; I. C. R. Co. v. Cathey, 70 Miss. 332; I. C. R. Co. v. Jones, 16 So. 300; Hinton Bros. Lbr. Co. v. Polk, 78 So. 179, 117 Miss. 300; Owen v. I. C. R. Co., 24 So. 899; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Lampton v. Atkins, 129 Miss. 660, 92 So. 638.

If deceased was assisting Evans the appellant is not liable because thereby he placed Myself in the position of a fellow servant.

Beale & Strayhorn v. Clayborn, 152 Miss. 681, 120 So. 812; Greet v. Pierce, 167 Miss. 56, 147 So. 303; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787; N. O. J. & G. N. R. Co. v. Hughes, 49 Miss. 258; Harper v. Public Service Corp. of Miss., 170 Miss. 139, 154 So. 266; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462.

Barbour & Henry, of Yazoo City, and White & McCool, of Canton, for appellee.

Whether deceased was an invitee or mere licensee, there was a deliberate violation of the duty not to render the premises dangerous and unsafe, after knowledge of decedent's presence.

Even if deceased was a curiosity seeking trespasser, in moving from that part of the premises to which he had been expressly invited by a public ginner to another part of the premises, where he had not been expressly invited, but where his presence was known, there was liability for changing without warning the harmless situation into one of deadly peril.

The negligence of appellant through its representative, Evans, was so gross and his conduct so reckless as to constitute that degree which imposes liability even to a mere trespasser, under the recent decisions of this court.

Appellee was entitled to peremptory instruction instead of appellant.

Murray Chevrolet Co. v. Cotton, 169 Miss. 521; Trico Coffee Co. v. Clemens, 168 Miss. 748; Rogers v. Lewis, 144 So. 373.

A principle stated in nearly every case cited by appellant, and one that is universally recognized, is to the effect if there is mutuality of interest as between the owner of the premises and the licensee, there is a clear duty to exercise reasonable care to prevent the premises from becoming unsafe. The principle is strikingly applicable here. The deceased and appellant had a mutual interest in getting the gin running, or at least ascertaining the cause of and length of delay by the breakdown. The interest of deceased was to get the balance of his bale of cotton ginned, or ascertain if it was necessary to move it to another gin. The interest of appellant was the same in the promotion of its business as a public ginner. It was in recognition and furtherance of this mutual interest that deceased was invited into, and went into, the gin.

Owens v. Y. & M. V. R. R. Co., 94 Miss. 378; Robertson v. Y. & M. V. R. R. Co., 152 Miss. 333.

It is undisputed that deceased's mission to gin his cotton had not terminated, and he was still waiting on the premises for this to be done.

Petree v. Davidson, 1118 S.E. 697; 45 C. J. 808, 812; Belzoni Hardwood Lbr. Co. v. Langford, 127 Miss. 234; Knight v. Farmers, etc., Gin Co., 159 Ark. 423, 252 S.W. 30; North Texas Constr. Co. v. Crawford, 39 Tex. Civ. App. 56, 87 S.W. 223.

One who hauls cotton to be ginned at a public ginnery is an invitee of the owner of the ginnery.

Smith v. Jewell Cotton Mill Co., 29 Ga.App. 461, 116 S.E. 17; Ackert v. Lansing, 59 N.Y. 646; Bayley v. Curtis Bros. Lbr. Co., 124 A.D. 496, 108 N.Y.S. 937; Gulf Refining Co. v. Moody, 172 Miss. 377.

If deceased was not an invitee, when near the generator or motor by invitation of Evans, the gin foreman, then certainly he was a licensee, and his presence was fully known and appreciated.

45 C. J. 788-791, 793-794, 796-798, 802-803; Lepnick v. Gaddis, 72 Miss. 200.

Where the presence is fully known, and acquiesced in, there is no difference in the duty owing to a licensee and to an invitee.

45 C. J., pages 803, 804; Gray v. Foundation Co., 91 So. 527.

We confidently submit the appellant was not entitled to a peremptory instruction, as this is the only error assigned and argued, we submit the judgment should be affirmed.

Argued orally by Pat Eager, for appellant, and by Jeptha...

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