Marlon Inv. Co. v. Conner

Decision Date04 February 1963
Docket NumberNo. 42531,42531
Citation149 So.2d 312,246 Miss. 343
PartiesMARLON INVESTMENT COMPANY v. Mrs. Homer L. CONNER.
CourtMississippi Supreme Court

Welch, Gibbes & Graves, Laurel, for appellant.

Howard L. Patterson, Jr., Hattiesburg, Gilbert F. Heinbaugh, Petal, for appellee.

ETHRIDGE, Justice.

This case involves the tort liability of an owner of land containing an office building near a public sidewalk, to a person who parked her car on a parking apron in front, as a convenience to visiting a business in an adjacent building, and who was injured when by mistake she walked down a dark, abandoned stairway in front of the owner's building.

Mrs. Homer L. Conner, appellee, brought this action in the Circuit Court of Forrest County against appellant, Marlon, Investment Company (called Marlon), and W. W. Gammel, doing business as Gammel Music Company. The case was submitted to a jury on plaintiff's evidence alone. It returned a verdict for Gammel, and a verdict of $5000 for Mrs. Conner against Marlon. There is no issue as to the amount of damages. Marlon contends only that it was entitled to a peremptory instruction. In view of the jury's verdict, the facts and all reasonable inferences from them in favor of plaintiff must be taken as true.

I.

Plaintiff and her husband had lived in Hattiesburg for a short time before her fall on August 14, 1961. They operated a drive-in restaurant, and Gammel furnished the coin-operated machines. They had been doing business with Gammel for some time, but Mrs. Conner had never been to his place of business in downtown Hattiesburg.

Marlon and Gammel own adjoining properties across the street from the city hall. Facing the two buildings from the street, Gammel's building, on the right, is finished in red brick, and Marlon's building, on the left, is brick painted a light color. Gammel leased the street level portion of his building to a third party, and carried on his business downstairs. It has a main entrance on the street level near the sidewalk, and on the left side is a covered but unenclosed alcove leading to a doorway, on which is printed 'Gammel Music Company'. This doorway opens upon stairs going down to the basement level where Gammel has his business.

Although Gammel's building is flush with the sidewalk, Marlon's building is set back from the street fifteen to twenty feet. The area in front of it is surfaced with concrete and contains at least three signs indicating 'Parking Reserved' for named tenants. On the right front of the Marlon building are steep concrete stairs, approximately eight feet wide, going down to the basement. The stairs were open, uncovered, and without light. There was an iron railing on either side of them, and handrails going down both walls of the stairs and in their center. The building was used as a bus station during World War II, and these stairs were then used by passengers coming from inside the station on the ground level, who walked down and under the building into the parking area of the bus station in the rear. The depot was changed to another location after the war, and at that time Marlon 'abandoned the use of those stairways.' The door at the bottom of the stairs was boarded and locked.

On the night in question, Mrs. Conner ran out of change to be used in Gammel's coin-operated machines. Gammel was not able to deliver any, so she drove her car to Gammel's place. Someone advised her it was across the street from the city hall. It was 9:30 P.M. and drizzling rain. Mrs. Conner parked her car on the concrete apron in front of Marlon's building. She got out of it, on the apron, and saw the lighted neon sign on the side of Gammel's building, stating 'Gammel Music Co.' Under that sign was an arrow apparently over two feet long, pointing downward, stating 'Downstairs.' This arrow was over Marlon's abandoned stairwell, and in that location was manifestly misleading to a stranger at night and under the circumstances. It also pointed toward the recessed door opening on the steps in Gammel's building, leading down to his basement office. Since the Gammel sign pointing 'downstairs' was directly over Marlon's abandoned stairs, and it was dark and she did not see the door to Gammel's stairway, Mrs. Conner proceeded to walk down Marlon's stairs. After she had gone three or four steps, she was able dimly to see, by reflection from the colored neon sign next door, that the bottom of the stairs was closed. She then started back up the stairs, and, although she saw the rubbish, she slipped on it and a tin can on the steps, causing her to fall all the way down.

Mrs. Conner said that, when she got out of her car, and she saw the Gammel 'downstairs' sign with the arrow, Marlon's were the only visible stairs, and she thought they were the proper ones. She parked on the apron to the left of a car owned by H. L. Patterson, and walked in front of it to go down the steps. She saw the parking markers reserved during business hours, but no business was being done that night; she planned to be there only a few minutes.

There was no curb or other obstacle to prevent a person from driving on the parking apron in front of the Marlon building. It was paved with the same type of concrete as the public sidewalk, and had been paved in that manner for many years. In the daytime Marlon's tenants used the parking area, but at night the public parked there frequently. Taxis often stopped there for passengers, both day and night. At the time of Mrs. Conner's fall, there was another car in addition to Patterson's parked to his right on the apron. The apron served as a parking area and entrance to and from the Marlon building, and in general was used by the public. There was a walkway which went around the building to the back, where others parked.

II.

Mrs. Conner was not a trespasser on Marlon's property. A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. 2 A.L.I., Restatement of Torts, Sec. 329; Prosser, The Law of Torts (1955), Sec. 76; 2 Harper & James, The Law of Torts (1956), Secs. 27.1-27.7. Neither, under the circumstances, can she be classified as an invitee. 2 Harper & James, Sec. 27.12. However, the jury was warranted in finding she was a gratuitous licensee. A licensee is a person who is privileged to enter upon land by virtue of the possessor's consent or permission. Permission is conduct justifying others in believing the possessor is willing that they shall enter if they desire to do so. This consent may be expressed by acts other than words. The decisive factor is the interpretation which a reasonable man would put upon the possessor's acts, in the light of all the surrounding circumstances, and the custom prevailing in the community. 2 A.L.I., Rest. of Torts, Sec. 330.

This permission may, of course, be tacit, and may be manifested by the defendant's conduct, or by the condition of the land itself. It is often a question for the jury. Prosser, Torts, Sec. 77. In the instant case, the jury could consider the fact that Marlon's parking apron was immediately adjacent to the public sidewalk, without any barriers or distinguishing features in the nature of the pavement; that many members of the public used the apron for parking at nighttime in particular, and for the purpose of walking around to the rear of Marlon's building; that taxis frequently used it; and that at the time Mrs. Conner drove there, there were already two other cars parked on the apron.

Marlon's instruction No. 5 submitted to the jury the issue of whether plaintiff was a trespasser. It found against defendant on this question. Plaintiff's instruction No. 5 submitted the question of whether Marlon had by its conduct permitted the public to use the premises in the belief it was a public way, and whether the users had an 'implied invitation' for that purpose, which phrase 'imports knowledge by the defendant of the probable use of his property in such a manner.' The jury manifestly found the existence of such an implied invitation, permission, or consent classifying Mrs. Conner at least as a licensee.

This conclusion is consistent with analogous Mississippi cases. Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 26 L.R.A. 686 (1894); Allen v. Yazoo & M. V. Railroad Co, 111 Miss. 267, 71 So. 386 (1916); Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379 (1936); see Prosser, Sec. 77; Harper & James, Sec. 27.8; 38 Am.Jur., Negligence, Sec. 104; 65 C.J.S. Negligence Sec. 32.

III.

A common statement of the rule is that no duty exists toward a licensee except to refrain from willfully or wantonly injuring him, and not to set traps for him by exposing him to hidden perils. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A more complete and accurate statement of the current law on this subject is expressed by Prosser, Torts, Sec. 77:

'A licensee is a person who is privileged to enter upon the land by virtue of the possessor's consent. The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty toward him, except:

'a. To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.

'b. To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to the possessor, or of any change in the condition of the premises which may be dangerous to him, and which he may reasonably be expected not to discover.

Once the licensee in fact discovers the danger, he may not later complain of it.'

2 A.L.I., Restatement of Torts, Sec. 342, summarizes the rule in this way:

'A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

(a) knows of the condition and realizes that it involves an...

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