Jones v. Bland

• Decision Date: 21 September 1921
• Docket Number: (No. 19.)
• Citation: 108 S.E. 344
• Parties: JONES. v. BLAND et al.
• Court: North Carolina Supreme Court

108 S.E. 344

JONES.

v.BLAND et al.

(No. 19.)

Supreme Court of North Carolina.

Sept. 21, 1921.

Appeal from Superior Court, Beaufort County; Allen, Judge.

Action by M. M. Jones against T. L. Bland and others. Judgment for defendant, and plaintiff excepts and appeals. New trial.

The action is to recover damages for the alleged negligence of T. L. Bland, proprietor of the Hotel Louise, and another, in leaving open the elevator shaft leading off the hotel lobby and into which plaintiff fell, receiving serious, painful, and enduring injuries. There was denial of liability and plea of contributory negligence on part of plaintiff. On the trial there was evidence tending to show that on the afternoon of January 23, 1918, about 3:30 p. m. plaintiff was invited into said Hotel Louise by W. B. Troy, a boarder at the hotel, and the two were going up to the room of said Troy on the fourth floor of the building; that it was a dark, cloudy day, the elevator being behind the stairs, shutting off much of the light that existed, and the elevator shaft from its placing and color of paint was such that plaintiff was unable to discern whether carriage was in place, and, believing it was, stepped into the open door, falling to cement floor of the basement, a distance of 9 to 11 feet, and causing painful and permanent injuries, from which he is still suffering and greatly hindered in his ability to work.

It was proved that the carriage of the elevator at the time was at one of the upper floors, where it had been taken by some one, and that the door on the lobby floor was open. It was also shown that Mr. Troy, the inmate of the hotel, had been sick and confined to the house for about a week, and there were facts on evidence permitting the inference that it was the purpose of Troy in calling plaintiff into the building and of the two in going to Troy's room to play cards for money at a fine of 10 cents limit, involving a loss of 25 or 50 cents, etc. There were submitted the three ordinary issues as to the negligence of defendant, contributory negligence of plaintiff, and damages, and, the court having charged the jury, there was verdict for defendant on the first issue. Judgment for defendant, and plaintiff excepted and appealed, assigning errors.

Daniel & Carter, of Washington, N. C., for appellant.

Robert Ruark, of Wilmington, Small, MacLean, Bragaw & Rodman, of Washington, N. C., and Wm. B. Campbell, of Wilmington, for appellees.

HOKE, J. [1] It is earnestly urged for error that his honor charged the jury in part on the first issue that, if they should find that Jones and Troy were on the way to Troy's room for the purpose of playing cards for money, they should answer the first issue for defendants; the objection being that such unlawful purpose, even if established could in no legal sense be considered as the proximate or contributing cause of plaintiff's injury. As an abstract proposition, considered entirely apart from the proprietary rights of the defendant as owner and in the management of the property, the position embodied in this objection should be upheld. In Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534, Chief Justice Dixon, in an opinion of great force and learning, approves and sustains the principle that "the fact that plaintiff, at the time he suffered injuries to his person or property from the negligence of defendant, was doing some unlawful act will not prevent a recovery, unless the act was of such a character as would naturally tend to produce the injury"; that is, unless the very unlawfulness of the act would have that tendency. And the principle so stated is fully recognized in this state as in accord with the better considered authorities on the subject. Ferrell v. Railroad, 172 N. C. 682, 90 S. E. 893, L. R. A. 1917B, 1291; McNeill v. Railroad, 135 N. C. 682, 47 S. E. 765, 67 L. R. A. 227; Waters v. Railroad, 110 N. C. 338, 14 S. E. 802, 16 L. R. A. 834; Watson on Damages for Personal Injuries, §§ 230-237.

A judge's charge, however, must be considered and interpreted in reference to the material facts submitted for his decision, and on this record it appears that defendant is the owner and proprietor of the hotel where the incident occurred, and plaintiff is insisting upon the position that he was there at the time on the invitation of a guest of the hotel, and has been injured in breach of the duty owed to one in that position. In the case suggested and without more it is very generally held that such a one, termed an invitee, is entitled to the duty of ordinary care from the proprietor and his employees, but the principle does not extend to a claimant who enters a hotel for an ulterior purpose, and who, going beyond the scope and purpose of the invitation, wanders into some remote portion of the premises not covered by the same, and where there is no reason to expect him to go. Under such circumstances, he loses the position of invitee and the privileges incident to it, and is to be considered trespasser or mere licensee, towards whom no duty is owing except not to willfully or wantonly injure him. Money v. Hotel Co., 174 N. C. 508, 93 S. E. 964, L. R, A. 1918B, 493; Monroe v. A. C. L. R. Co., 151 N. C. 374, 66 S. E. 315, 27 L. R. A. (N. S.) 193; Quantz v. Railroad. 137 N. C. 136, 49 S. E. 79; Glaser v. Rothschild, 221 Mo. 180, 120 S. W, 1, 22 L. R. A. (N. S.) 1045, reported also in 17 Ann. Cas. 576; Ryerson v. Bathgate, 67 N. J. Law, 337, 51 Atl. 708, 57 L. R. A. 307; Reardon v. Thompson, 149 Mass. 267, 21 N. E. 369; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463; Zoebisch v. Tarbell, 10 Allen (Mass.) 385, 87 Am. Dec. 660. And the principle as stated should clearly prevail where under the guise of an invitee the claimant has entered or remains upon the premises for an unlawful purpose, assuredly so where the proprietor has no knowledge of such purpose and takes no part therein. McGhee v. Norfolk & S. R. Co., 147 N. C. 142, 60 S. E. 912, 24 L. R. A. (N. S.) 119; Newark Electric, etc., Light Co. v. Garden, 78 Fed. 74, 23 C. C. A. 649, 37 L. R. A. 725; 1 Thompson on Negligence, § 969.

In this last citation the position is stated as follows:

"The distinction is that the person coming on the premises to whom this duty of care is due must not come as a mere trespasser or wrongdoer, but for some purpose lawful in itself and such as the owner or occupier might reasonably expect to bring him there."

As applied to the facts of this record, therefore, his honor correctly charged the jury that, if claimant was going to the room for the unlawful purpose of gambling, they should answer the issue as to defendant's negligence "No, " and he gave the right reason for it; "for in such case there would be no duty owing to him except not to willfully or wantonly injure him." Emry v. Navigation & Water Power Co., 111 N. C. 94, 16 S. E. 18, 17 L. R. A. 699. And he was correct also in holding that there were no facts in evidence to justify a finding of that character; there being no claim of willfulness and wantonness in this connection, being negligence so gross as to manifest a reckless indifference to plaintiff's rights. Everett v. Receivers, 121 N. C. 519, 27 S. E. 991.

The appellant excepts further that the court charged the jury as follows:

"The burden is on the plaintiff to satisfy you by the greater weight of the evidence that Shepard, the boy in charge of the elevator, or whoever was in charge of it, left the door open, or that, if opened by some one other than an agent or employee of defendants, that defendants knew it, or that it remained open long enough for them, in the exercise of ordinary care, to have discovered it, and if plaintiff has failed to so satisfy you of these facts, you will answer the first issue 'No.'"

The court is dealing here with the general question of defendant's negligence as involved in the first issue and on the assumption that plaintiff was an invitee on the premises and entitled to the duty of ordinary...