First Nat. Bank of Birmingham v. Lowery

• Decision Date: 12 May 1955
• Docket Number: 6 Div. 485
• Citation: 81 So.2d 284,263 Ala. 36
• Parties: The FIRST NATIONAL BANK OF BIRMINGHAM v. Lillian Mason LOWERY. The FIRST NATIONAL BANK OF BIRMINGHAM v. E. A. LOWERY. , 486.
• Court: Alabama Supreme Court

Page 284

81 So.2d 284

263 Ala. 36

The FIRST NATIONAL BANK OF BIRMINGHAM v. Lillian Mason LOWERY.

The FIRST NATIONAL BANK OF BIRMINGHAM v. E. A. LOWERY.

6 Div. 485, 486.

Supreme Court of Alabama.

May 12, 1955.

Rehearing Denied June 23, 1955.

Marvin Williams, Jr., Davis & Williams, Birmingham, for appellant.

Hare, Parsons, Wynn & Newell, W. L. Longshore, Birmingham, for appellees.

LIVINGSTON, Chief Justice.

The two cases before us were consolidated for trial in the circuit court and will here be treated together on appeal.

Each case was tried upon a simple negligence count. The cases were tried on plaintiffs' amended complaints. The amended complaints in each instance allege that on May 27, 1950, defendant, appellant, was the proprietor or owner of the premises in Leeds, Alabama, known as the First National Bank of Birmingham, Leeds Branch. Further, the complaints allege that on aforesaid date, plaintiff, Lillian Mason Lowery, was present upon said premises as 'a customer and invitee of the defendant.' It is averred that as Lillian Mason Lowery stood or walked upon the floor of defendant bank, she slipped and fell, and as a proximate consequence thereof, broke her left leg at the hip joint. The two complaints state that defendant, at the time of the fall, negligently maintained the premises where Lilliam Mason Lowery was injured in a condition so slippery as to be not reasonably safe to stand or walk upon. E. A. Lowery, husband of the injured party, is the plaintiff in the second complaint. His claim also is for damages and is based upon medical expenses and loss of services.

In each case, defendant filed a plea of the general issue in short by consent, with leave, etc. At the conclusion of the evidence, both cases were submitted to the jury. Verdicts of $7,500 and $2,000 were returned in favor of Lillian Mason Lowery and E. A. Lowery, respectively.

Motions for a new trial were duly filed in each case and overruled. Thereafter, defendant prosecuted this appeal.

Appellant contends that reversible error was committed by the trial court in its refusal to give the affirmative charge on behalf of the defendant. The basis of said contention is that the evidence fails to show Mrs. Lowery to have been an invitee on defendant's premises at the time of the accident.

Appellant argues that Mrs. Lowery entered the bank building on a mission which was for her benefit alone; as a consequence, she was a mere licensee rather than an invitee.

The evidence shows that Mrs. Lowery entered the bank for the sole purpose of having a one-hundred dollar bill changed into bills of smaller denominations. This change was needed to enable a patient to pay a bill which he owed to Dr. E. A. Lowery.

In support of the contention that plaintiff was a licensee, appellant cites Cobb v. First National Bank of Atlanta, 58 Ga.App. 160, 198 S.E. 111. In that case, plaintiff entered defendant bank to obtain a blank form of a promissory note for her own use, and the Georgia Appellate Court held that plaintiff was a licensee rather than an invitee.

Appellant also cites Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 171 So. 634, 636, which states the following principle:

'It is further established that to render a landowner responsible for the mere condition of his property, in the absence of an affirmative act calculated to inflict injury, invitation to the person injured must be implied from conduct amounting to more than sufferance, permission, or passive acquiescence in repeated trespasses. * * *'

The Alabama law on this proposition is stated in Alabama Great Southern Railway Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 190 in which Mr. Justice Haralson speaking for the court said:

"The term 'invitation,' within the rule that the owner of the property who has held out any invitation, allurement, or inducement for others to come upon the property, must keep his premises in a safe condition, imports 'that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession or control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used.' The true distinction is this: A mere passive acquiecence by an owner or occupier in a certain use of his land by others involves no liability. But if he directly or by implication induces persons to enter on and pass over his premises he thereby assumes an obligation that they are in a safe condition, suitable for use, and for a breach of this obligation he is liable in damages to a person injured thereby.' Sweeny v. Old Colony & N. R. Co., 92 Mass. [10 Allen 368], 368, 873, 87 Am. Dec. 644, cited in L. & N. R. R. Co. v. Sides, 129 Ala. 402, 29 So. 798 [22 Words and Phrases, Invitation, p. 562]. 'It is sometimes difficult to determine whether the circumstances make a case of invitation, in the technical sense of that word, as used in a large number of adjudged cases, or only a case of mere license. 'The principle,' says Mr. Campbell, in his treatise on Negligence, 'appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.'' Harlan, J., in Bennett v. Louisville & N. R. Co., 102 U.S. 577-585, 26 L.Ed. 235.'

The Supreme Court of Missouri in the case of Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, 686, states the rule as follows:

'It, however, makes no difference in the owner's duty to the invitee whether the invitation is express or implied. 45 C.J. 808, § 218. An implied invitation is defined as 'one which is held to be extended by reason of the owner or occupant doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interest.' 45 C.J. 809, § 220. 'However, it is not sufficient that the user believed that the use was intended, but in order to occupy the status of invitee, he must show that there was some act or conduct of the owner or occupant which afforded a reasonable basis for such belief. An invitation may be implied from dedication, customary use, or enticement, allurement, or inducement to enter. It may be manifested by the arrangement of the premises or the conduct of the owner.' 45 C.J. 810, § 220. See, also, Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045, 17 Ann.Cas. 576. The owner's duty to an invitee is to take ordinary care to prevent his injury. Glaser v. Rothschild, supra.'

This statement of the law has been followed in cases in several other jurisdictions: notably, Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870; Mills v. Heidingsfield, La.App., 192 So. 786; Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912.

In the case of Wool v. Larner, 112 Vt. 431, 26 A.2d 89, 92, this proposition of law is stated thusly:

'Without an invitation express or implied, no duty of active care arises. But such invitation is implied whenever as in the case at bar one makes such use of another's premises or something found thereon as the owner intends he shall, or such as he is reasonably justified in understanding the owner intended.'

In the case at bar, we are of the opinion that the plaintiff, Mrs....