Meiers v. Fred Koch Brewery

• Decision Date: 27 April 1920
• Citation: 127 N.E. 491,229 N.Y. 10
• Parties: MEIERS v. FRED KOCH BREWERY.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 10

127 N.E. 491

MEIERS

v.FRED KOCH BREWERY.

Court of Appeals of New York.

April 27, 1920.

Action by John F. Meiers against the Fred Koch Brewery. Judgment of the Trial Term on directed verdict dismissing complaint reversed by the Appellate Division, and defendant appeals.

Order of Appellate Division (180 App. Div. 450,167 N. Y. Supp. 740) affirmed, and judgment for plaintiff ordered on stipulation.

Hiscock, C. J., and Collin and Elkus, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth department.

Vernon Cole, of Buffalo, for appellant.

Thomas P. Heffernan, of Dunkirk, for respondent.

ANDREWS, J.

[1] Over its property from the street in front, beside its building, giving access to a stable in the rear, the defendant had built a paved driveway. Back, 150 feet, across half of this pavement, ran an unguarded coal hole. The driveway was used by the defendant and by those who had business with it. To a trespasser or to a licensee, one upon its premises solely for his own purposes and objects, not by invitation but with consent, no affirmative care was due. To all others using the driveway as it obviously was intended to be used reasonable care measured the defendant's duty.

One evening the barn caught fire. Meiers was chief of the Dunkirk fire department, and he responded to the alarm. Reaching the driveway he walked briskly up it. It was dark, and in the darkness he fell into the coal hole, and so was injured. Under such circumstances, as to him, was such care owing? He was not a trespasser. That is conceded. Was he merely what is called a bare licensee? We regard as immaterial the fact that the alarm was first given by a servant of the defendant. However notice of the fire reached the plaintiff, his rights were the same. Nor do we lay stress on the fact that he was a fireman, except as his position might impose greater responsibility upon him than upon one of the public seeking to extinguish the fire or rescue property.

In other states it has been often suggested that, while a fireman or policeman entering upon private property in the performance of his duty was rightfully there, this duty was primarily for the protection of the public, not for the benefit of the individual. To entitle one to rely upon an implied invitation to enter, his purpose must be of interest or advantage to the owner. So if his design is to visit employés (Dixon v. Swift, 98 Me. 207, 56 Atl. 761;Woodwine v. Railroad, 36 W. Va. 329, 15 S. E. 81,16 L. R. A. 271, 32 Am. St. Rep. 859), or to sell his wares (Norris v. Contracting Co., 206 Mass. 58, 91 N. E. 886,31 L. R. A. [N. S.] 623,19 Ann. Cas. 424), or to deliver those he has sold (Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800), or to solicit employés to take insurance (Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S. W. 657,24 L. R. A. [N. S.] 497), or to collect debts from them (Berlin Mills Co. v. Croteau, 88 Fed. 860, 32 C. C. A. 126), or in search of a servant (Plummer v. Dill, 156 Mass. 428, 31 N. E. 128,32 Am. St. Rep. 463), or to look over the machinery (Benson v. Traction Co., 77 Md. 535, 26 Atl. 973,20 L. R. A. 714, 39 Am. St. Rep. 436), or in search of employment(Larmore v. Crown Point Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718), he is merely a licensee. Similar to these cases it is said is the case of a fireman or policeman. He, too, is merely a licensee. He entered without the invitation, express or implied, of the owner. Lunt v. Post Printing Co., 48 Colo. 316, 110 Pac. 203,30 L. R. A. (N. S.) 60,21 Ann. Cas. 492;Gibson v. Leonard, 143 Ill. 182, 32 N. E. 182,17 L. R. A. 588, 36 Am. St. Rep. 376;Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113,22 L. R. A. 198;Beehler v. Daniels, 18 R. I. 563,26 Atl. 6,27 L. R. A. 512, 49 Am. St. Rep. 790;Hamilton v. Desk Co., 78 Minn. 3, 80 N. W. 693,79 Am. St. Rep. 350;New Omaha Co. v. Anderson, 73 Neb. 84, 102 N. W. 89;Kelly v. Muhs Co., 71 N. J. Law, 358, 59 Atl. 23;Pennebaker v. Light Co., 158 Cal. 579, 112 Pac. 459,31 L. R. A. (N. S.) 1099, 139 Am. St. Rep. 202;Drake v. Fenton, 237 Pa. 8, 85 Atl. 14, Ann. Cas. 1914B, 517;Kohn v. Lovett, 44 Ga. 252;Casey v. Adams, 234 Ill. 350, 84 N. E. 933,17 L. R. A. (N. S.) 776, 123 Am. St. Rep. 105;Ingalls v. Express Co., 44 Minn. 128, 46 N. W. 325;Burroughs Machine Co. v. Fryar, 132 Tenn. 612, 179 S. W. 127, L. R. A. 1916B, 791. Substantially all of these cases relate to accidents in buildings entered by the plaintiffs in the course of their duties. This, however, is a mere accident, and undoubtedly the general authority in this country favors the rule as stated.

This court has never passed upon the question, and, persuasive as may be the judgment of the courts whose decisions we have cited, we are still free to declare the law as we believe it exists in New York. And we doubt whether in the case before us it may not fairly be said that there was an implied invitation. ‘To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged. * * * There must at least be some mutuality of interest in the subject to which the visitor's business relates.’ Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463. We know of no better definition. And within the letter of it is the plaintiff. He was, it is true, engaged in a public service. Incidentally, however, this service requires him to protect the owner's property. The interests of the latter as an individual are involved quite apart from his interests as one of the public. The fireman's purpose ‘is connected with the business in which the occupant is engaged,’ although he also has higher and greater ends to serve and this suggestion is not without support. In Creeden v. Railroad, 193 Mass. 280, 79 N. E. 344,9 Ann. Cas. 1121, where an officer was injured on the defendant's premises, it was stated that no crime was being there committed, nor was any criminal present whom the officer could rightfully arrest. ‘There was not even the implied invitation on the part of the defendant for the constable to enter the train, which might possibly * * * exist if a theft or other crime was being committed upon the train.’ In City of Naples, 69 Fed. 794, 16 C. C. A. 421, a grain inspector was performing his duties on a steamer. He was more than a licensee, for the vessel could not receive its cargo, until the cargo had been inspected. So it has been held as to a city employé collecting offal (Toomey v. Sanborn, 146 Mass. 28, 14 N. E. 921), as to one reading a water meter (Finnegan v. Gas Co., 159 Mass. 311, 34 N. E. 523), and as to a revenue inspector in a distillery (Anderson Co. v. Hair, 103 Ky. 196, 44 S. W. 658).

We are unwilling, however, to place our decision on so narrow a ground. It would be increasingly difficult to rely on an implied invitation where the fire is on neighboring property, or where an officer is pursuing a thief from the scene of his crime a mile away. Nor do we think it is necessary.

[3] A license involves the idea of permission on the one side-its acceptance on the other. A licensee is rightfully on the property. But this right depends upon the owner's consent-consent that may be revoked at any time. He is doing what without such consent would be unlawful. His position has been compared to that of a donee, or to one to whom a chattel is loaned. Because of this, and what is supposed to have been intended, the duties of the owner are fixed. The consent carries with it no more than the right to use the property in the condition in which it is found. No greater obligation is implied. A mere consent means no more. And the meaning of this consent is the basis of the rule. An invitation also may be withdrawn, as may a consent, but until withdrawn there is a higher duty upon the owner. It is given for the benefit of both parties, so both may be said contemplate that the invitation may be safely...