Hoffman v. Planters Gin Co., Inc., 50175

Citation358 So.2d 1008
Decision Date24 May 1978
Docket NumberNo. 50175,50175
PartiesRandy HOFFMAN, a minor, by and through his father, Earl Hoffman, next friend, Plaintiff-Appellant, v. PLANTERS GIN COMPANY, INC., Defendant-Appellee.
CourtUnited States State Supreme Court of Mississippi

Yancy & Easley, Cliff R. Easley, Jr., James W. Pennington, Bruce, for plaintiff-appellant.

Campbell & DeLong, Fred C. DeLong, Jr., Lawrence D. Wade, Greenville, for defendant-appellee.

Before PATTERSON, BROOM and BOWLING, JJ.

PATTERSON, Chief Justice, for the Court:

This is an appeal from the Circuit Court of Sunflower County which granted the defendant, Planters Gin Company, Inc., a peremptory instruction against plaintiff, Randy Hoffman, in a tort suit.

A review of the facts most favorable to the plaintiff reveals that at the time of the accident he was fourteen years of age. The previous year he had dropped out of grade school and accompanied his father, Earl Hoffman, about his work. The father was employed by Fratesi Farms as a truck driver, and Randy, who was not employed, on occasion aided his father in this work. For two or three weeks prior to the accident in which he was injured Randy had helped his father in transporting cottonseed from the appellee's gin in Indianola, Mississippi, to an oil mill.

On January 21, 1976, the son accompanied his father to the gin where he assisted in packing the seed on the truck. Later Randy entered the seed house in the center of which was a tunnel-like passage containing an auger in a recessed concrete floor. The auger moved the seed from the house for loading. It was covered with removable floor plates or covers, but when the pressure of seed became too great, they would push the covers up and spill onto the narrow (eighteen inches each side of the auger) floor of the tunnel. Randy, his father, and Nate, one of the gin's employees, entered the tunnel to shovel seed back into the auger as the flow had slowed. While in the tunnel, Mr. R. L. (Sonny) White, the gin manager, knelt beside the tunnel, admonishing them to be careful and not get into the auger. Nate and Mr. Hoffman left the tunnel, but Randy remained and continued sweeping seed. When Nate shouted that his father wanted him, Randy turned, slipped on some seed, and his right foot fell into the revolving auger. As a consequence the leg was amputated below the knee, and at the time of trial Randy was being fitted with an artificial leg. The injury resulted in a suit by Randy by and through his father Earl Hoffman, next friend, against Planters Gin Company, Inc.

The record discloses there were no warning signs on the building or doors of the tunnel and the entrance to it was never locked. Larry Cook, a gin manager in Sumner, Mississippi, testified that the generally accepted safety practices of the industry in the Mississippi Delta area were posting of warning signs, prevention of unauthorized personnel around such machinery, and covers on augers accessible to anyone.

Randy testified that on the day of the accident as well as on other occasions, six or seven of the auger covers were off and six or seven were on. He stated he was in the tunnel perhaps two or three times a day and that no one, including employees or their superiors, ever warned him to stay out of the tunnel or, as far as he knew, advised his father to keep him out of the tunnel. He conceded he was admonished, however, to be careful and knew the auger was dangerous. Additionally, Randy testified that he had replaced some of the gin employees in their work upon their requests while they took a break to smoke or otherwise refresh themselves.

The elder Hoffman testified that no one ever told him that he or his son should stay out of the tunnel and that to his knowledge no one ever personally told Randy to stay out. He stated that other employees had seen Randy going about the seed house on several occasions and that there were no warning signs about the tunnel and that seven or eight of the auger covers were usually left off of it.

George Robinson, a truck driver who also hauled cottonseed from the gin during January 1976, testified that drivers could enter the tunnel and place seed into the auger to expedite loading. He had done so, and no one had ever ordered him to stay out of the tunnel. He also observed there were no warning signs, the door to the tunnel was not locked, and, at times, there were no covers on the auger.

The manager, White, testified the main business of the gin was production of certified seed for planting. The purpose of the tunnel was to relieve moisture and heat from the seed, to protect the auger, and to keep people away from the machinery. To prevent the seed from being crushed in the trough it was necessary to unpin one end of the covers over the auger to allow seed to spill out when the trough became too full. However, at the time of the accident cull or low germination seed were being transported to an oil mill so that special care to prevent their being crushed in the trough was unnecessary.

Fred Harrington, delinting manager for the gin, testified that he had observed Randy and his father in the tunnel and the seed house on several occasions and had warned both to stay out of the tunnel.

The only issue presented is whether the trial court erred in granting a peremptory instruction for appellee. We are of the opinion the evidence presented an issue for determination by a jury.

The established rule in passing upon the propriety of granting a peremptory instruction is that the Court must look solely to the testimony in behalf of the party against whom the peremptory instruction was requested and consider that testimony as true along with all permissible inferences to be drawn therefrom. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); Gates v. Murphree, 286 So.2d 291 (Miss.1973); Dazet v. Bass, 254 So.2d 183 (Miss.1971). If such evidence could support a verdict for him, the peremptory instruction should not have been given. Gates, supra.

In order to ascertain the liability of appellee, if any, it is necessary to consider the following:

(1) The status of the minor, that is, whether he was an invitee, a licensee or a trespasser;

(2) The duty of the gin to the minor; and

(3) Whether there was a breach of that duty.

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Langford v. Mercurio, 183 So.2d 150 (Miss.1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another's premises without license, invitation or other right. Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

Ordinarily, a child who accompanies a parent or other adult customer onto business premises to conduct business is an invitee. Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559 (1935); and see 44 A.L.R.2d, Child-Invitee or Licensee, § 5, p. 1329 (1955). And, although the injured party may have entered the premises as an invitee, he may lose this status and acquire that of a licensee, if not a trespasser, if he exceeds the scope or purpose of the invitation by proceeding into an area not included in the invitation. Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973); Kelley v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

We are of the opinion the testimony and reasonable inferences therefrom favorable to the plaintiff were sufficient to present a jury issue. Unquestionably, Randy and his father were either licensees or invitees lawfully upon the gin premises to further the father's business. According to the testimony, their presence as well as Randy's accessibility to the tunnel, was known to the defendant and neither was directed to stay out of it. It also appears that other drivers were given the same access to the area.

Additionally, there were no warning signs prohibiting entrance and Randy had been seen in the seed house and tunnel. Indeed, he had assumed the places of some of the gin employees whose work required them to be in the seed house and tunnel, while they took a recess from their duties to smoke or otherwise refresh themselves. Moreover, from the evidence, Randy's presence in the tunnel immediately adjacent to the revolving auger was known to the defendant through its manager who called into the tunnel admonishing Nate, Randy and his father to be careful and not to get into the auger. While it is true these facts were largely denied by the defendant's testimony, it nevertheless created a conflict for resolution by a jury.

The pertinent question is whether Randy's status at the time of injury brings him within the standard of ordinary and reasonable care or whether a...

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