Pauckner v. Wakem

Decision Date17 December 1907
Citation231 Ill. 276,83 N.E. 202
CourtIllinois Supreme Court
PartiesPAUCKNER v. WAKEM et al.

OPINION TEXT STARTS HERE

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Action by George Pauckner against J. Wallace Wakem and another. From a judgment of the Appellate Court for the first district, affirming a judgment for plaintiff, defendants appeal. Affirmed.Horton, Brown & Miller, for appellants.

Charles M. Foell and Earl J. Walker, for appellee.

On May 31, 1902, appellants were copartners carrying on a general warehouse business in the city of Chicago. On said day the Chicago Tribune Company had certain pieces of machinery stored in the appellants' warehouse, and sent appellee and another of their employés to the warehouse to secure the particular pieces of machinery required. The machinery was inclosed in boxes, and when appellee reached appellants' warehouse, he, in company with his foreman, whose name was Carpenter, went to appellants' office to inquire where the goods were. The man in charge of the office conducted them down an east and west asile that intersected an aisle which extended north and south. They turned north down the latter aisle, and proceeded a short distance toward the door, when the man from the office said, with a motion of his arm, or hand: ‘Here is your goods.’ Appellee and Carpenter secured the box they desired and removed it to a near-by door, which was in the north entrance of the north and south aisle. At this point appellee, desiring to attend to a call of nature, asked permission of Carpenter to leave the work and attend to his needs. This was granted, and appellee turned south on the aisle or passway, which was a narrow, irregular way left between piles of goods, coffee bags, etc. Appellee was unacquainted with the room. He saw a man with a lantern in the passway, and started toward the south to go to him to inquire where the urinal was located. In passing down south along the north and south aisle he fell into an unprotected elevator shaft and was severely injured. The accident happened about the middle of the forenoon. The interior of the building was but dimly lighted by small incandescent builbs hanging here and there, some of which were lighted and some were not. The light around the elevator shaft was very dim and the entrance to it was unguarded. A judgment for $5,000 in favor of appellee has been affirmed by the Appellate Court for the First Distirct, and appellants have prosecuted a further appeal to this court. The errors assigned here question the rulings of the court in refusing to direct a verdict, and in giving, refusing, and modifying instructions.

VICKERS, J. (after stating the facts as above).

If appellee was a mere licensee and went upon appellants' premises for purposes of his own and not for any purpose connected with the business of appellants, he cannot recover without proof that appellants knowingly and willfully injured him. The owner of premises owes no duty to exercise ordinary care to keep his premises in a reasonably safe condition to persons who may be upon such premises as mere licensees. 3 Elliott on Railroads, § 1250; Gibson v. Leonard, 143 Ill. 182, 32 N. E. 182,17 L. R. A. 588, 36 Am. St. Rep. 376;Illinois Central Railroad Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656. If, as appellants contend, appellee was a mere licensee at the time of his injury, he is not entitled to recover, and the court erred in overruling appellants' motion to direct a verdict. On the contrary, if appellee was on the premises at the time and place of the accident by the invitation, either express or implied, of appellants, they owed him the duty to exercise ordinary care for his safety while upon said premises.

In a strict and legal sense, there is a well-defined distinction between a mere licensee and one who comes upon the premises of another by invitation, express or implied. In a general sense, one upon the premises of another by invitation is a licensee, and if sued for a trespass his defense would be ‘leave and license’ of the owner; but in a strict and somewhat technical sense, to come upon premises under an implied invitation means more than a mere license-means that the visitor is there for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on. Plummer v. Dill, 156 Mass. 426, 31 N. E. 128,32 Am. St. Rep. 463; Illinois Central Railroad Co. v. Hopkins, supra. It will be found that the distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming. Permission involves leave and license, but it gives no right. If one avail himself of permission to cross another's land, he does so by virtue of the license and not of right. The permission of license is a justification for his entry, and while he is not technically a trespasser, yet the duty of the owner to guard him against injury is governed by the rules applicable to trespassers. Watts v. Jensen, 86 Fed. 658, 30 C. C. A. 333, 46 L. R. A. 58, and cases cited in note. One who enters a mine or factory by the permission of the owner, merely to inspect the premises and the work there being carried on, for purposes of his own and not with a view of transacting any business with the owner, is a mere licensee, and the owner owes him no higher duty to protect him from injury while on the premises than he would if he were a treaspasser. The duty to one who comes thereon by the owner's invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit. Under such circumstances the party is said to be on the premises by implied invitation of the owner. Kennedy v. Chase, 119 Cal. 637, 52 Pac. 33, 63 Am. St. Rep. 153.

Keeping in mind the distinction above pointed out, a brief reference to the evidence in the case at bar will show that appellants' contention that appellee was a mere licensee in the warehouse at the time of the accident cannot be sustained. Appellants had the goods of the Chicago Tribune Company stored in the warehouse. It must have been within the contemplation of appellants, when these goods were received into their warehouse, that sooner or later a delivery of them would have to be made to the owner of the goods. The delivery of the goods by appellants and the receipt thereof by the Chicago Tribune Company was a matterof business which was of mutual interest to the parties. The duty of appellants to the servant of their customer was the same as to the customer himself....

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