Farmers' & Merchants' Warehouse Co. v. Perry

• Decision Date: 18 October 1928
• Docket Number: 7 Div. 826
• Citation: 218 Ala. 223,118 So. 406
• Parties: FARMERS' & MERCHANTS' WAREHOUSE CO. v. PERRY.
• Court: Alabama Supreme Court

118 So. 406

218 Ala. 223

FARMERS' & MERCHANTS' WAREHOUSE CO. v. PERRY.

7 Div. 826

Supreme Court of Alabama

October 18, 1928

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action for damages for personal injuries by D.B. Perry against the Farmers' & Merchants' Warehouse Company of Lineville. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Pruet &amp Glass, of Ashland, for appellant.

Walter S. Smith, of Lineville, for appellee.

FOSTER J.

The first count of the complaint charges that defendant operated a public warehouse in Lineville for weighing and storing cotton; that plaintiff carried two bales of cotton to the warehouse to be weighed and stored; that "while plaintiff was walking in said warehouse he was suddenly precipitated or fell down through an elevator opening, in a dark place in said warehouse, and thereby" was injured etc. It then avers "that defendant, its agents or servants, knowing the existence of the opening and that it was dangerous, failed to notify plaintiff, who was ignorant of the same." It then avers that his injuries were the "proximate result of the negligence of defendant in maintaining said elevator opening in a dark place in said warehouse, uncovered and unprotected, and without some sign or warning to caution plaintiff of the danger there existing which duty defendant owed plaintiff to so erect some sign or warning of said dangerous place or to keep same covered or protected, and which plaintiff negligently failed to do."

It is insisted that the count is insufficient for that it does not allege facts showing a duty not negligently to injure plaintiff, in that it does not allege that plaintiff was an invitee, and not a trespasser or licensee. The count does not allege that plaintiff while walking in said warehouse was upon business incident to storing or weighing the cotton which he had brought, or that it was upon the occasion of his handling such cotton. To constitute plaintiff an invitee, he must have been in the warehouse upon the business upon which the invitation to the public is extended. Otherwise he was not an invitee, and a different rule applies. While the complaint does not expressly allege that he was walking in said warehouse as an incident to such business, the language used is sufficient to justify such reasonable interpretation. It is one which should be submitted to the jury upon proper instructions, but the count will not be held bad for that defect. It is well understood that the duty to an invitee is not to injure him either negligently or willfully or wantonly. Galloway v. Perkins, 198 Ala. 658, 73 So. 956; Lawrence v. Kaul Lbr. Co., 171 Ala. 300, 55 So. 111; McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508.

This extends to negligence in failing to warn an invitee of danger, of which he knows or ought to know, and of which the invitee is ignorant. U.S.C.I.P. & F. Co. v. Fuller, 212 Ala. 177, 102 So. 25; S.I. & S. Co. v. Tilson, 141 Ala. 161, 37 So. 427; Connors, etc., Steel Co. v. Kilgore, 189 Ala. 643, 66 So. 609; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154; Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 43 Am.Rep. 456; 29 Cyc. 453. It extends also to the duty to use reasonable care to have the premises to which he is invited, in a reasonably safe condition for such contemplated uses, and within the contemplated invitation. S.I. & S. Co. v. Tilson. supra; Montevallo Mining Co. v. Little, 208 Ala. 131, 93 So. 873; Republic Iron & Steel Co. v. Luster, 192 Ala. 501, 68 So. 358.

The duty to a licensee or trespasser is to use due care, after discovering his peril, and not willfully or wantonly to injure him. Reed v. Ridout Ambulance Co., 212 Ala. 428, 102 So. 906; S.I. & S. Co. v. Tilson, supra.

The count seems to charge a breach of duty in two respects: One is that defendant, its agents, or servants, failed to notify plaintiff. This is not a sufficient allegation of breach of duty. It does not allege that the agents or servants, so failing, were within the line or scope of their employment. It is not necessary to allege that the servant or agent was acting in the line and scope of his authority, when the allegation is that "defendant by its servant or agent" did the wrong, or words to that effect. In such instance the negligent act is charged to defendant. Alabama Power Co. v. Conine, 207 Ala. 435, 93 So. 22; 39 Corpus Juris, 1353. It is also pointed out in that case that the situation is different when the allegation is that the wrong was done by "defendant's servant or agent." In such instance the wrong is not attributed to defendant, for it is not alleged that the servant or agent was acting in the line and scope of his employment. He may have been upon his own business, with which defendant was not connected. Addington v. Am. Cast Co., 186 Ala. 92, 64 So. 614; Steele v. May, 135 Ala. 483, 33 So. 30; Jones v. Strickland, 201 Ala. 138, 77 So. 562.

This rule is also applicable to willful or wanton counts. Morrison v. Clark, 196 Ala. 670, 72 So. 305; 39 Corpus Juris, 1353.

It does not allege that such failure was either negligent or willful or wanton. Defendant may not have had an opportunity to do so. The circumstances may not have called for such notice. In short, the failure may not have been wrongful in any respect.

The other breach of duty...