Nevada Transfer & Warehouse Co. v. Peterson, 3267.

• Docket Nº: 3267.
• Citation: 99 P.2d 633, 60 Nev. 87
• Case Date: March 05, 1940
• Court: Supreme Court of Nevada

99 P.2d 633

60 Nev. 87

NEVADA TRANSFER & WAREHOUSE CO.
v.
PETERSON et al.

No. 3267.

Supreme Court of Nevada

March 5, 1940

Appeal from Second Judicial District Court, Washoe County; Edgar Eather, Judge.

Action by Amy J. Peterson and husband against the Nevada Transfer & Warehouse Company for personal injuries sustained by Amy J. Peterson. From a judgment for plaintiffs, defendant appeals.

Affirmed. [99 P.2d 634]

George B. Thatcher, William Woodburn, and William J. Forman, all of Reno, for appellant.

Lloyd V. Smith, of Reno, for respondents.

DUCKER, Justice.

This action was instituted by respondents, who are husband and wife, to recover [99 P.2d 635] damages for personal injuries sustained by the latter. The facts out of which the action arose may be stated substantially as follows: Appellant corporation at the time of the trial and for some years prior thereto, was engaged in a general warehouse business and owned and operated a large warehouse building in Reno, Nevada. H. E. Stewart was the secretary of the company and owner of 99 1/2% of the stock thereof. At the time of the accident which resulted in the injuries complained of, the warehouse was divided by a long aisle or passageway extending from the rear entrance on the easterly side of the building to the office on the westerly side of the building. On the northerly side of the building were three large rooms. The one on the easterly end of the northerly side of the building was known as the "packing room" and the one in the center, where a truck runway was located, was called a "receiving" or "delivery" room. The truck runway in the receiving room was so constructed as to form an inside loading and unloading dock, the floor of such runway being approximately 4 feet lower than the floor of the remainder of the room. The runway was approximately 16 feet wide and 20 feet long and was almost flush with the wall separating the receiving room from the larger room on the westerly side. There was no guard rail around the runway, and no light in the receiving room. It was used almost exclusively in the day time. There was a doorway between the receiving room and the aisle or passageway, and a doorway between the receiving room and the packing room, but no doorway from the aisle to the latter room. There were two doorways in the easterly wall of the packing room opening onto a loading platform connected with the building which extended from the northeast corner of the building to a short distance beyond the rear entrance to the said aisle or passageway.

At the time of the accident respondents were living together in a house located on the premises of and owned by appellant, situated about 50 or 60 feet northerly from the warehouse. Formerly they had resided for some years in a portion of the warehouse. In November 1935 a part of appellant's warehouse burned, and was reconstructed, such reconstruction being completed about the 28th of February, 1936. The northerly side of the warehouse was a concrete wall. At the time of the reconstruction it was drilled by air drills and a large opening 14 by 16 feet on a level with the adjacent street or driveway made therein whereby trucks could drive directly into the runway. There was a large overhead door in the opening of the runway.

Tom Ginnochio was night watchman. He had charge of the warehouse at night and was on duty when Mrs. Peterson was injured. Peterson was foreman at that time and had been an employee of the appellant at the warehouse for a number of years. On the night of July 7, 1936, he was at work loading furniture from the larger room on the north side of the warehouse. At about eight o'clock on that evening he called from the door of that room to his wife, who was in the yard of their home, to bring him a flashlight. She obtained the flashlight from her home and entered the warehouse building through the rear entrance to the aisle. Peterson came through the larger room and met her about midway of the aisle, got the flashlight, and returned to his work, telling her he would be along in a few minutes. She started to leave the warehouse by the same way she came in when she met Tom Ginnochio, who was unloading case goods from the truck. He asked her to go into the office because a truck driver was in there telephoning, and he didn't care to have the man in there alone. She remained there from twenty minutes to half an hour, and on attempting to leave the building by the same way she had entered, she found the passageway filled with the case goods Ginnochio had been unloading. She asked Ginnochio how to get out. He told her to go through the packing room and he would let her out another door. He said, "Go right around there and come out of the packing room." To reach the packing room from the aisle she had to go through the receiving room, where the truck runway was located. She entered the receiving room, and on going forward fell into the runway, fracturing and dislocating her right elbow, and suffering other injuries.

Appellant contends that the trial court erred in refusing to grant a new trial because the evidence failed to establish any duty owed by appellant to respondents which was breached. This contention is grounded in part on the theory that Mrs. Peterson was on the premises as a trespasser, or bare licensee, to whom appellant owed no duty, except to refrain from wilfully or wantonly injuring her. In support [99 P.2d 636] of this position it is argued that Peterson was without authority to invite her to come upon the premises because Stewart testified that before the accident he once or twice requested Peterson to ask her not to come on the premises.

On the other hand respondents contend that she was on the premises as an invitee. We are inclined to this view, irrespective of what the evidence may show as to Peterson's implied authority to invite her to the premises. Ginnochio, who had charge of the warehouse at night, requested her to go to the office to attend to a duty for him which he was unable to do because he was at the time engaged in the performance of other duties. One in charge of premises has authority to do thereon any reasonable act to accomplish the discharge of his duties. There was nothing unreasonable in requesting Mrs. Peterson to stay in the office. She was no stranger to Ginnochio, or to the premises. She was the wife of his fellow employee and lived close to the warehouse; had formerly lived in the warehouse and was frequently seen on the premises. She had just performed a chore for her husband by bringing him the flashlight. There is nothing to show that Ginnochio had any knowledge that Stewart had requested Peterson to ask his wife not to come on the premises. An additional reason for holding that Ginnochio had implied authority to invite her to the office may be found in the fact that her going there was for the benefit of appellant. Smith v. Pickwick Stages System, 113 Cal.App. 118, 297 P. 940. "An invitation is implied where the entry on, or the use of, the premises is for a purpose which is, or is supposed to be, beneficial to the owner or occupant. **" 45 C.J. 812, and cases cited in note 38.

Mrs. Peterson's legal status at the time she suffered injuries being that of an invitee, appellant owed her the duty of ordinary care. Even so, appellant insists that the evidence fails to establish a breach of that duty which would justify the verdict and judgment thereon. On the other hand, respondents contend that the action of Ginnochio in blocking the passageway through which she entered the warehouse, and directing her to a way out into a place of unknown danger, constituted negligence on his part chargeable to appellant, and which was the proximate cause of her injuries. Ginnochio was familiar with the interior of the warehouse. He knew of the open pit or runway in the receiving room and the danger attending it. His testimony concerning which is undisputed, is as follows:

"Q. Were there any guard rails or means of any kind to guard the open pit, to prevent people from falling into it A. No

Q. Did you know the open pit was in that room? A. Yes, sir

Q. Have you ever fallen into it? A. Yes, sir, I have.

Q. Was it before the occasion that Mrs. Peterson was injured? A. Yes, sir.

Q. At the time when you told Mrs. Peterson to go through the packing room to get out, did you know the open pit was in the room? A. I did.

Q. Why didn't you tell Mrs. Peterson it was there? A. I told her to be careful as you go out, go out that door. There was a light from her door on the back porch could throw light into the pit, that she could possibly see it, but there was a couple of van boxes there on both sides loaded with furniture.

Q. Did you tell Mrs. Peterson that there was a pit in the room? A. Well, sir, I could not recall. I don't think I did. I don't know whether I did or not. I could not say.

Q. Were there any lights in the packing room? A. Yes, sir, one little light.

Q. Was that lighted? A. Well, I don't know. I unloaded a lot of meat there. I don't know if I turned it off or not. It was lit at the time I unloaded. I believe it was. I would not swear to it.

Q. Was that light inside or outside the packing room? A. The light from her door could have throwed some reflection that could have been light there.

Q. Was there any lighting fixture in the packing room itself? A. By the pit?

Q. Yes. A. No, sir."

The evidence shows that the van boxes loaded with furniture, testified to by the witness, made almost a complete passageway about 6 or 8 feet in width, from the entrance to the receiving room, to the pit. The van boxes on the left of the entrance extended from the door a short distance over the pit, while the one on the right extended to a point opposite the south end of the pit, leaving an open space of four feet between the van box and the southeast corner of the...