Ockerman v. Faulkner's Garage, Inc.
| Decision Date | 05 June 1953 |
| Citation | 261 S.W.2d 296 |
| Parties | OCKERMAN v. FAULKNER'S GARAGE, Inc. |
| Court | United States State Supreme Court — District of Kentucky |
C. A. Noble, Hazard, for appellant.
Alva A. Hollon, Hazard, Mahan, Davis & Mahan, Louisville, for appellee.
Appellant, Reverend R. F. Ockerman, instituted this action against Drew Faulkner and Faulkner's Garage, Inc., for personal injuries sustained when he fell from a freight elevator while on the garage premises. At the conclusion of all the testimony, the court sustained a motion for a peremptory instruction in favor of Faulkner's Garage, Inc., and the case proceeded as to Drew Faulkner. The sole question on this appeal involves the propriety of the peremptory instruction as to the garage corporation.
On the afternoon of May 8, 1951, Reverend Ockerman went to Faulkner's Garage in Hazard, Kentucky, to see Mr. Drew Faulkner concerning 'the improvement program in progress at the Methodist Church.' Upon entering the garage he asked an employee where Mr. Faulkner was and was told that he was in the 'Dr. Pepper building' which is the name used to refer to a two-story building owned by Mr. Faulkner next to the 'old garage.' As owner of the Dr. Pepper building, Mr. Faulkner had leased the entire first floor and a portion of the second floor to the garage and was converting a portion of the second floor into apartments.
Reverend Ockerman walked from the 'old garage' through a passageway into the Dr. Pepper building where he was spoken to by name. At this time Mr. Faulkner was on the second floor overseeing work on his apartments. A freight elevator situated in the rear of the first floor of the building was the only means of access to the second floor. The elevator consisted of a small platform without guardrails, was electrically operated, and its path of ascent and descent was guided by vertical rails attached to the wall. It could be set in motion by pulling a line which tripped an electric switch. The unidentified person who had called Reverend Ockerman by name apparently did not expressly invite him to ride on the elevator, nor did anyone else, but he did follow him to it and pulled the line which started the elevator with Reverend Ockerman aboard. The elevator proceeded upward toward the second floor, but 'slipped' and fell a few feet until halted by an automatic stop. Reverend Ockerman lost his balance and fell to the first floor where he sustained personal injuries.
The proof discloses that Reverend Ockerman was a frequent visitor to the garage premises to see Mr. Faulkner about church work; that he came there an average of once a week; that Mr. Faulkner had recently conducted him on a personal tour of the premises; and that he had previously taken him to the second floor on the elevator. There is also proof that the elevator had slipped on two or three prior occasions, but that it had been repaired previous to the accident and was thought to be in good mechanical order when Reverend Ockerman boarded it.
Mr. Faulkner testified pertaining to his invitation to Reverend Ockerman to visit the garage and premises, that he was always welcome to come to see him, but that he 'didn't extend him any special invitation more than I would ordinarily anyone else.' There is no evidence that Reverend Ockerman at any time came to the premises for a purpose connected with the garage business.
In the light of the evidence we think it is clear that Reverend Ockerman was not on the premises as a business visitor to whom the possessor of the...
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