McDonald v. Wilmut Gas & Oil Co

Decision Date18 October 1937
Docket Number32837
Citation176 So. 395,180 Miss. 350
PartiesMCDONALD v. WILMUT GAS & OIL CO
CourtMississippi Supreme Court

Division B

1. LANDLORD AND TENANT.

A tenant takes premises as he finds them, and, in absence of concealment or fraud as to some defect or danger known to landlord and unknown to tenant, rule of caveat emptor applies.

2 EASEMENTS.

Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipe line ditch of company which had right of way, and owner of ox knew of condition of ditch and made no claim of concealment or fraud, he could not recover from company for death of ox even if he were a tenant on premises and first tenant were company's agent in making grant.

3 ANIMALS.

The liability of a licensor who has permitted gratuitous licensee to enter on land for purposes of pasturage is not based on duty to maintain inclosed acreage in safe condition, but on duty to disclose to licensee risks which he will encounter if he accepts permission granted, and, where licensee has full knowledge of danger and accepts license, he assumes the risks.

4 EASEMENTS.

Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipeline ditch of company which had right of way, and owner of ox knew of condition of ditch before he pastured ox on premises, he could not recover from company for death of ox, even if he were a gratuitous licensee and first tenant were company's agent in making grant.

5. NEGLIGENCE.

As respects right to recover for dangerous condition of realty, the rights of a licensee for a valuable consideration can be no higher than those of a tenant, nor lower than those of a gratuitous licensee.

6. EASEMENTS.

Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipe line ditch of company which had right of way, and owner of ox knew of condition of ditch before he pastured ox on premises, his assumption of risk barred recovery from company for death of ox, even if he were licensee for consideration, and first tenant were agent of company in making grant.

7. NEGLIGENCE.

The common-law doctrine of assumption of risk is in full force in Mississippi, except as between master and servant (Code 1936, section 513).

HON. EDGAR M. LANE, Judge.

APPEAL from the circuit court of Covington county HON. EDGAR M. LANE, Judge.

Action by Caesar McDonald against the Wilmut Gas & Oil Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Currie & Currie, of Hattiesburg, and W. W. Dent, of Collins, for appellant.

It is contended by the appellant that the appellee knew, or should have known, of the condition of its pipe line and right of way, and that cattle were grazing within close proximity to the right of way and pipe line and were likely, by the vegetation there, to be lured into the excavation on its right of way and there bog down and drown; that it was a question for the jury to determine whether or not the appellee was negligent in creating and maintaining this veritable death trap within the cow pasture, without it being covered and in such close proximity thereto.

Chadwick v. Bush, 163 So. 823, 174 Miss. 75; Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 155; Auxford Brown Ore Co. v. Hudson, 77 So. 243; L. & N. R. R. Co. v. Harrison, 80 So. 683; St. Louis, Iron Mt. & So. R. R. Co. v. Newman, 127 S.W. 735, 28 L. R. A. (N. S.) 83; 1 R. C. L. 1133, par. 75; Restatement of the Law of Torts, page 780, par. 290 (f).

On the trial of this cause the appellant admitted that he knew of the condition of the pipe line right of way in the pasture when he turned his ox in it to graze, and that the hole or trench was there, but this in no way bars his right to recover, and the court could not say as a matter of law that the appellant's act in this regard was the sole proximate cause of the loss of the ox.

Sections 511 and 512, Code of 1930.

The deed to the right of way under which the appellee maintains this pipe line provides that the pipe shall be buried "plow depth." This provision was placed in the right of way deed for the benefit of the owners of the land, or tenants, or occupants, or lessees, or any persons who exercised control over the land with the permission of either occupant or owner, and under this provision it was intended that the occupants, owners, or lessees, should carry on their farm work unmolested and uninterrupted by this pipe line throughout South Mississippi, as this court judicially knows. The breach of this condition by the appellee in this case might of itself be indicative of some evidence of negligence.

We respectfully submit that the maintaining of this boggy trench covered with undergrowth, which this court knows lures and attracts cattle, is sufficient of itself to require a reversal of this case. Property owners and owners of right of way should not be permitted to maintain on their property boggy ditches or trenches covered with thick undergrowth attractive to cattle, in which cattle might fall and become injured or drowned, without being responsible to the owners of the injured cattle in damages, and whether a person maintaining such a condition is negligent and should be required to pay the owner of the injured cattle is strictly within the province of the jury.

John R. Tally, of Hattiesburg, for appellee.

There being no proof to establish that appellant was a licensee or invitee, so far as the appellee is concerned, then appellant and his ox must be classed as trespassers upon the property of appellee and, therefore, appellee owed appellant no duty except not to willfully or wantonly injure or destroy him or his property.

45 C. J., page 798, sec. 203-4, page 742, sec. 132, and page 745, sec. 134; I. C. R. R. Co. v. Arnola, 78 Miss. 787; Woodland Gin Co. v. Moore, 103 Miss. 447; Cato v. Crystal Ice Co., 109 Miss. 590; McGill v. Compton, 66 Ill. 327; Reardon v. Thompson, 149 Mass. 267, 21 N.E. 399.

A licensee enters land at his own risk and cannot recover for injuries caused by existing defects in the premises.

Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150, 15 L. R. A. 459; Eisenberg v. Mo. Pac. R. R. Co., 33 Mo.App. 85.

It is well settled that the mere permission to pass over lands which are dangerous, either naturally or by reason of the use which is made of them, imposes no duty or obligation upon the owner of such lands, except to refrain from acts which are willfully injurious or knowingly in the nature of a trap, and except, also, where there are hidden dangers, the concealment of which would be in the nature of a fraud. He who enjoys the permission or passive license is only relieved from the responsibility of being a trespasser, and must assume all ordinary risk attached to the nature of the place or the business carried on there.

Vandenberg v. Hendry, 34 N. J. L. 467; Sterger v. Vansiclen, 132 N.Y. 499, 30 N.E. 987, 28 A. S. R. 594, 16 L. R. A. 640; Kelley v. City of Columbus, 61 Ohio St. 263; Pierce v. Whitcomb, 48 Vt. 127, 21 A. S. R. 120; Peake v. Buell, 90 Wisc. 508.

Ordinary care of a reasonably prudent man does not demand that persons should prevision unusual, improbable, or extraordinary occurrence.

I. C. R. R. Co. v. Bloodworth, 145 So. 333, 166 Miss. 602.

We therefore insist that, under the facts as disclosed by the record in this case, the appellant would not be entitled to recover on a simple charge of negligence or of gross negligence, as the undisputed testimony Shows that whatever ditch or excavation that was made in said swamp was not made by this defendant, and that if it had been made by this defendant it was not a concealed defect nor in anywise a trap, but, on the contrary, it was open and obvious to appellant; and appellant testifies that he knew all about it, and knowing all the facts, having repeatedly seen the situation and condition, he voluntarily sought and procured, according to his own testimony, permission to graze his ox in and around the premises, and, in doing so, he thereby assumed the risk and cannot now be heard to complain, even as against the man Wiley Graham, from whom he obtained permission to put his ox in there, much less this defendant, against whom it has never been proven that any of its servants, agents, or employees had anything to do with it or even knew thai plaintiff was pasturing his ox in and around the alleged dangerous swamp.

The undisputed evidence in the case at bar shows that the ditch was only two or three feet wide and two to four feet deep, was open and obvious to everybody, and that the plaintiff, knowing all the facts for years before his alleged injury occurred, of his own free will and accord sought and procured pasturage right and placed his ox to pasture where, he now says, it was exceedingly dangerous for it to be, and lost his ox by result of his own bad judgment. He cannot profit by his own wrong.

John R. Tally, of Hattiesburg, and Green, Green & Jackson, of Jackson, for appellee.

Appellee, owner of the land, owed no duty as to the ox other than not to wilfully injure, no affirmative duty to keep the premises safe and in condition.

Knight v. Abert, 6 Pa. St. 472, 47 Am. Dee. 478; Thompson v. R R. Co., 105 Miss. 636, 63 So. 185, 47 L. R. A. (N. S.) 1101; Louisville, etc., R. Co. v. Phillips, 12 So. 825; Gandy v: Public Service Corp. of Miss., 163 Miss. 187, 140 So. 687; Gully v. Wilmut Gas & Oil Co., 174 Miss. 794, 165 So. 620; Ingrain-Day Lbr. Co. v. Harvey, 98 Miss. 11, 53 So. 347; Alabama Great S. Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 732; I. C. R. Co. v. Ash, 128 Miss. 410, 91 So. 31; New Orleans, etc., R. Co. v. Harrison, 105 Miss. 18, ...

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