Murry Chevrolet Co. v. Cotton

• Citation: 169 Miss. 521,152 So. 657
• Decision Date: 12 February 1934
• Docket Number: 31052
• Court: United States State Supreme Court of Mississippi
• Parties: MURRY CHEVROLET CO. v. COTTON et al

152 So. 657

169 Miss. 521

MURRY CHEVROLET CO. v. COTTON et al

No. 31052

Supreme Court of Mississippi

February 12, 1934

Division A

Suggestion Of Error Overruled April 23, 1934.

APPEAL from circuit court of Noxubee county, HON J. I. STURDIVANT, Judge.

Action by Mrs. Rosa Lee Cotton and others against the Murry Chevrolet Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Affirmed.

W. B. Lucas, of Macon, and Leftwich & Tabb, of Aberdeen, for appellant.

The deceased was not an invitee; he was a trespasser, or at most a mere licensee.

20 R. C. L. 64, sec. 56; Y. & M. V. R. Co. v. Cox, 97 So. 7, 132 Miss. 571; Illinois Central v. Arnola, 29 So. 768, 78 Miss. 788; Robertson v. Y. & M. V. R. R. Co., 118 So. 181, 152 Miss. 333; Y. & M. V. v. Mansfield, 134 So. 577, 160 Miss. 672.

Within the purview of the rule that an owner or occupier is liable to those and those only who come upon his premises by invitation, it seems to be the general opinion that an invitation cannot be implied from a mere toleration of trespassers.

It is established that one who merely suffers or acquiesces in the use of his premises, or permits others to enter thereon for their own purposes, does not owe to such persons the duty due to those who enter by invitation.

20 R. C. L. 64, sec. 56; Robertson v. Y. & M. V. R. R., 152 Miss. 341; 2 Words and Phrases, second series, Invitation, 1190-1192; Illinois Central Railroad Co. v. Arnola, 78 Miss. 788, 29 So. 768, 84 Am. St. Rep. 645; Yazoo Railroad Co. v. Cox, 132 Miss. 571, 97 So. 7; Allen v. R. R. Co., 111 Miss. 267, 71. So. 386.

Mr. Cash was a man, at least of average intellect; one of the witnesses says above average, and that he possessed all of the ordinary faculties of sight and hearing; therefore the defendant owed him no duty to suspend its business operations or to otherwise take any active measures to prevent accident and injury to him on this occasion, except merely to refrain from doing him a wilful hurt or wrong.

20 R. C. L. 57, sec. 53; 1 Thompson on Negligence, secs. 945 and 987; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615; N. Y., N. H. & H. R. R. Co. v. Frutcher, 260 U.S. 141, 67 L.Ed. 173; Erie R. Co. v. Hilt, 247 U.S. 97, 62 L.Ed. 1003; Galveston Oil Co. v. Morton, 70 Texas 400, 8 Am. St. Rep. 611, 615; Poling, Admr., v. Ohio River R. Co., 38 W.Va. 645, 24 L. R. A. 215, 226; Indian Refining Co. v. Mobley, 121 S.W. 658, 24 L. R. A. (N. S.) 497, 503; Ala. Great So. Ry. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76, 90; Chas. Fleckenstein, Jr. v. Atlantic & Pacific. Tea Co., 102 A. 700, L. R. A. 1918C 179; Woolwine v. Chesapeake & Ohio R. Co., 36 W.Va. 329, 15 S.E. 81, 16 L. R. A. 271; Shafer v. Tacoma Eastern R. Co., 157 P. 485, L. R. A. 1916F 114, 117 and note 117-120; Watson v. Manitou & Pikes Peake Ry. Co., 41 Col. 138, 92 P. 17, 18 L. R. A. (N. S.) 916, 922 and note 910-921; M. & O. R. Co. v. Strand, 64 Miss. 784; Dooley v. M. & O. R. Co., 69 Miss. 648; Louisville, New Orleans & Texas Ry. Co. v. Williams, 69 Miss. 631, 12 So. 957; Richmond & Danville R. Co. v. Burnsed, 70 Miss. 437; Illinois Central v. Arnola, 29 So. 768, 78 Miss. 787, 84 Am. St. Rep. 645; Ingram Lbr. Co. v. Harvey, 53 So. 347, 98 Miss. 11; Yazoo & M. V. R. Co. v. Huff, 111 Miss. 486, 71 So. 757; Yazoo & M. V. R. Co. v. Cox, 97 So. 7, 132 Miss. 364; Salter v. DeWeese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229; Bonhomie & H. S. Ry. Co. v. Hinton, 124 So. 271, 155 Miss. 173; Yazoo & M. V. R. Co. v. Mansfield, 134 So. 577, 160 Miss. 672; Robertson v. Yazoo & M. V. R. R. Co., 152 Miss. 333.

The court erred in overruling defendant's motion to exclude evidence offered by plaintiff's touching the expectancy of the decedent and gifts made by him to them.

Reily & Parker, of Meridian, for appellees.

It is the contention of the appellee that it is immaterial in this case as to whether or not the deceased is to be classified as an "invitee," "licensee" or "trespasser," because these various legal terms are used and applied in cases where the duty of anticipating the presence of the person injured is involved, but are not useful in those cases where the negligence complained of consists in positive acts done after the presence of the injured person is fully known.

Our court in the case of New Orleans, M. & C. R. Co. v. Cole, 57 So. 556, gives the true definition of negligence as follows: "The failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury."

There is a duty owing to a trespasser that is more than to refrain from wilful and intentional injury, but it extends to the point of requiring precautions to avoid doing an injury to a person where reasonable care, based upon past incidents, reveals the probability of the presence of persons who might be injured if care is not exercised.

45 C. J. 450; Pettyjohn & Sons v. Basham, 38 A. L. R. 391; Pomponio v. New York R. R. Co., 32 L. R. A. 530.

The designation of a party as being a "licensee" or an "invitee" does not change the rule with regard to the necessary and proper regard for human safety.

Brigman v. Fiske-Carter Construction Co., 49 A. L. R. 773; Walsh v. Pittsburg Ry., 32 L. R. A. (N. S.) 559; Christian v. I. C. Railroad Co., 15 So. 71.

It is not correct to contend that the rule of wilful and intentional injury is applicable to this case now before the court. The servants of the appellant in this case did see the deceased; they did appreciate his danger, and they did know that he was not in a position to extricate himself, and while in that condition, they failed to exercise reasonable care to prevent injury.

Owens v. Y. & M. V. R. R. Co., 47 So. 518.

A person cannot escape liability for negligence merely because the person injured was a trespasser, where before the commission of the negligent act the presence of the trespasser was known to him, or ought to have been known, and by use of ordinary care defendant might have avoided the injury.

29 Cyc. 443; Turner v. Y. & M. V. R. Co., 33 So. 283; 20 R. C. L. 61; I. C. R. R. Co. v. Mann, 102 So. 853; Robert Jamison v. I. C. R. R. Co., 63 Miss. 33; Southern R. R. Co. v. Pittman, 52 So. 207; Y. & M. V. R. Co. v. Messina, 67 So. 963; I. C. R. R. Co. v. Cole, 74 So. 766; Y. & M. V. R. R. Co. v. Lee, 114 So. 866; I. C. R. R. Co. v. Carroway, 58 So. 707.

OPINION

Cook, J.

The appellees instituted this suit in the circuit court of Noxubee county against the appellant, Murry Chevrolet Company, seeking to recover damages for the death of their father alleged to have been caused by the negligence of the officers and employees of the appellant. There was a verdict and judgment in favor of the appellees in the sum of five thousand dollars, from which this appeal was prosecuted.

The material facts in this case are not in dispute. The appellant owned and operated a place of business in the city of Macon where automobiles were bought, sold, serviced and repaired, and gasoline sold. The gasoline filling station was in front of the building in which the business was operated. The front part of the building itself was the office and salesroom, while the rear was used as a repair shop, and for the storage of automobiles. This room was about seventy-nine feet in width by one hundred twelve feet in length, and along the south wall thereof there was located a workbench. About seven or eight feet from this bench there was a large stove which was used to heat the room during cold weather, and to keep it comfortable for the employees of the appellant and such other people as might have business therein.

The father of the appellees, Jim Cash, was engaged in business just across the street from the appellant's place of business, and was on very friendly terms with the officers and employees of the appellant, and frequently visited in this repair shop for the purpose of social intercourse, and to warm himself in cold weather. On a very cold day in February, 1933, the said Jim Cash went into the appellant's repair shop or service department and proceeded to or near the stove for the apparent purpose of warming himself, and there remained for a considerable length of time. While he was standing near this stove, the appellant's two mechanics were busy about their duties repairing and servicing automobiles which had been brought into the shop. In the course of the discharge of these duties, one of the mechanics found himself in need of a blowtorch. He went to the workbench and took therefrom a blowtorch which was constructed with a receptacle intended to hold gasoline which furnished the flame when the torch was lighted, and this receptacle was known to contain gasoline when the mechanic started to use it. After he picked up the blowtorch, for some reason, the mechanic decided not to use it, and turned and placed it on top of the hot stove. He testified that he knew it would explode if placed on a hot stove, but did not realize he placed it on the stove.

The appellant's vice president and service manager was standing nearby and saw the mechanic place the blowtorch on the hot stove, but he gave no warning whatever, and turned and left the room, leaving the torch on the stove. A few minutes later, at about the same time, the two mechanics...