Graham v. Loper Elec. Co.

• Citation: 389 P.2d 750,192 Kan. 558
• Decision Date: 07 March 1964
• Docket Number: No. 43484,43484
• Parties: Betty Ann GRAHAM, As Widow of James Mathew Graham, Now Deceased, Appellee, v. LOPER ELECTRIC COMPANY, Inc., A Corporation, Appellant, and I. D. Barber, a/k/a Pete Barber, Defendant.
• Court: United States State Supreme Court of Kansas

Page 750

389 P.2d 750

192 Kan. 558

Betty Ann GRAHAM, As Widow of James Mathew Graham, Now Deceased, Appellee, v. LOPER ELECTRIC COMPANY, Inc., A Corporation, Appellant and I. D. Barber, a/k/a Pete Barber, Defendant.

No. 43484.

Supreme Court of Kansas.

March 7, 1964.

Syllabus by the Court

1. The degree of care to prevent injury which the owner or occupier of premises owes to a business invitee, as distinguished from a mere licensee, discussed and determined.

2. Where there is a mutual interest or a relationship inuring to the benefit of both the injured party and the occupier of premises, an invitation is implied and the injured party is considered a business visitor or invitee.

3. The record in an action for damages for wrongful death is examined and it is held the trial court did not err in restricting argument as to the instructions to be given the jury; in delaying the making of a record of objections to instructions until after the jury was charged, nor in the instructions given.

Robert L. Howard, Wichita, George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, Charles J. Woodin and Mikel L. Stout, Wichita, with him on the briefs, for appellant.

William C. Farmer, Wichita, Paul V. Smith, Douglas E. Shay, Leo R. Wetta and James R. Schaefer, Wichita, with him on the briefs, for appellee.

HATCHER, Commissioner:

This is an appeal from a judgment rendered in a wrongful death action. The issues presented for review require a rather detailed statement of the facts.

The defendant, I. D. Barber, was the owner of certain real property located in the 9400 block on West Central Avenue in the city of Wichita, Kansas. About February 25, 1959, he started building a shopping center at the location. He subcontracted various portions of the work including a contract with the Loper Electric Company, Inc., for all of the electrical wiring and the setting of a service pole to the rear of the building to support the electric power lines from the main line to the shopping center.

On March 17, 1959, Mr. Shumate, a commercial representative of Kansas Gas and Electric Company, visited with Barber at the shopping center location. Thereafter, Shumate prepared preliminary papers on the project in the K. G. & E. offices. Shumate contacted the Loper Electric Company on March 25, 1959, and obtained additional information as to the type service which would be required. During this conversation, K. G. & E. was informed by Loper Electric Company that service was required to be installed by April 25, 1959. After Shumate had obtained the necessary information from Loper Electric Company that was required, he proceeded to prepare additional documents on K. G. & E. forms preparatory to the installation of service as requested. A work order was prepared, a plot plan was obtained from Loper Electric Company and a notation was put on the work order to 'please rush'. The work was scheduled the week of April 9, 1959. After the job was placed on the work schedule, it would take in excess of 3 weeks before the construction crews of K. G. & E. could actually perform the work.

In the last week of April, 1959, Barber notified Loper that he had to have the service pole set in order to start the construction of black top surfacing. Loper stated that he did not have a clamp which was necessary to use in setting the pole and that he would have to set it on a temporary basis. He probably set the pole the same day. The pole was set in the ground approximately 15 inches deep.

The pole was not intended to be self supporting but was to be fastened to the structure for support by the use of 14 inch bolts which had been built into the wall of the building. The clamp which was to go around the pole and fasten to the bolts was not immediately available. The pole was temporarily fastened to the eaves of the building by a plumber's strap and screws or nails. There was no signal or warning of any kind placed on the service pole.

On the morning of May 1, 1959, a construction crew of K. G. & E., including the decedent, James Mathew Graham, went to the premises to perform the services shown by their work order. The work order included materials which were to be used on hooking up the service pole to the main line, hanging a transformer, making the necessary connections, running service lines to the service pole and checking the voltage.

The foreman of the crew looked at the pole and saw nothing wrong with it. It had been set in the ground, tamped, and had a little strap around it at the top of the building. He did not know the purpose of the strap but saw no reason to suspect the pole was not safe. Graham was told to climb the service pole and put the necessary equipment on it. The other crew members who were present at the time testified that they didn't see anything unusual or wrong or any danger signals about the pole being unsafe to climb. Graham was stretching a wire putting tension on the pole when it suddenly gave was and fell to the ground. The pole fell on Graham, critically injuring him. He died a few minutes after he arrived at the hospital.

The action was brought by the widow of James Mathew Graham for the benefit of hereself and their two minor children against the Loper Electric Company, Inc. and I. D. Barber. When the case came on for trial, a demurrer was sustained to the opening statement of plaintiff as to the defendant Barber.

The jury returned a verdict against the Loper Electric Company in the amount of $22,500 which was approved by the court. The Loper Electric Company has appealed.

The appellant presents its case here on the assumption that the deceased was a licensee of the appellant. The appellee tried her case below and defends here on the theory that the deceased was a business invitee of appellant.

The degree of care which an owner or occupant of premises owes to a licensee and that which is owed to an invitee does not appear to be in serious dispute. The general rules will be briefly stated.

Generally a mere licensee has no cause of action because of injury received through the negligence of the owner or occupant of the premises to which the license extends. The owner or occupant of premises owes no duty to the licensee except to refrain from wilfully or wantonly injuring him. (Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P.2d 748.)

Negligent injury of a licensee will not create a cause of action unless it is equivalent to wilfulness or wantonness. A mere licensee takes the premises as he finds them and assumes all risks incident to the condition of the premises. The owner or occupant of the premises may make any lawful use or changes in its property creating dangerous conditions without liability to a licensee for injury therefrom. (Hogan v. Hess Construction Co., 187 Kan. 559, 358 P.2d 755.) The limited liability or immunity from liability for injuries to a licensee applies to one who is lawfully occupying the premises as well as to the owner.

The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee's safety. The duty to exercise ordinary care is active and positive, and no element of wilfulness or wantonness need be present. The inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonable safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence. (Seymour v. Kelso, 136 Kan. 543, 16 P.2d 958; Thog Martin v. Koppel, 145 Kan. 347, 65 P.2d 571; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P.2d 427; George v. Ayesh, 179 Kan. 324, 295 P.2d 660; Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107).

The petition contained no allegation of wanton or wilful negligence which would create a liability on the part of the appellant to a mere licensee. The allegations of negligence read:

'That the direct and proximate joint and concurrent cause of his death was the negligence of the defendants and each of them, their agents, servants and employees, which negligence consisted of the following acts and omissions to-wit:

'(1.) In failing to exercise ordinary and reasonable care in not setting the pole involved at a safe depth in the ground.

'(2.) In failing to adequately secure said pole to the adjacent building.

'(3.) In violating their duty to the employees of Kansas Gas and Electric Company and particularly this decedent to set the pole in a safe and proper manner at a time when they knew that linemen would at their express invitation, be working on said pole and connecting heavy electrical lines thereto.

'(4.) In failing to warn the decedent of the inherent dangers of climbing said pole and attaching heavy wiring thereto.

'(5.) In failing to exercise reasonable and proper care which ordinarily prudent persons would have exercised...