Robillard v. Tillotson

• Decision Date: 05 October 1954
• Docket Number: No. 246,246
• Citation: 108 A.2d 524,118 Vt. 294
• Parties: Rachel ROBILLARD v. E. Harold TILLOTSON, d/b/a Tillotson and Harran.
• Court: Vermont Supreme Court

Page 524

108 A.2d 524

118 Vt. 294

Rachel ROBILLARD v. E. Harold TILLOTSON, d/b/a Tillotson and Harran.

No. 246.

Supreme Court of Vermont.

Oct. 5, 1954.

John A. Swainbank, St. Johnsbury, for plaintiff.

Sterry R. Waterman, St. Johnsbury, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

ADAMS, Justice.

This is an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The plaintiff claims that she received the injuries when, without fault on her part, she fell into a grease pit on the filling station premises of the defendant.

At the close of the plaintiff's case, the defendant moved for a directed verdict in his favor upon the grounds, in substance, that the evidence shows no actionable negligence on the part of the defendant; that the evidence fails to show that the defendant owed any duty whatsoever to the plaintiff of a business visitor or invitee character; that the evidence fails to show that the defendant failed in any duty that he owed the plaintiff and that the plaintiff was guilty of contributory negligence as a matter of law.

The court granted the motion on the ground that the plaintiff has not brought herself within the classification of a business visitor and that there is no evidence that the plaintiff was a business visitor on the premises. The case is here on exceptions allowed the plaintiff to this action of the court.

There is little dispute as to the material facts. Viewed in the light most favorable to the plaintiff they are as follows: The defendant owns and operates a gasoline service station location on the easterly side of Railroad Street in St. Johnsbury. It has a typical service station building equipped with an office, stock room and stalls for a service and repair shop with an overhang on the front of the building and two pumps between the building and the sidewalk with a double driveway for access to both sides of the pumps. The office and stock room are in the southerly part of the building. There are doors in the front of the building for access to the office and to the service stalls.

The double driveway enters the premises from Railroad St. from both the north and south and there is a driveway from the double driveway around the building in its rear. There is an open area about forty feet wide on the northerly part of the premises with room to park seven or eight cars. This area is used by customers to drive into for the purpose of stopping to come into the station and arranging for work to be done. In so doing they sometimes use the driveway in the rear and the public also use this driveway occasionally for the purpose of turning around. The open area is not used for parking cars as there is a public parking lot adjoining the defendant's premises on the north and the defendant tried to keep the open area clear. He takes cars to the public parking lot if they are to be left any length of time.

There is a grease pit parallel with and a few feet north of the station building. This pit is unguarded. Lights are installed at the gas pumps and on the overhang and there is a street light at the northwest corner of the station premises at the edge of the sidewalk. This light illuminates the grease pit unless a car is parked so near the pit as to block out the light rays. The lights from the pump and overhang illuminate the driveway but not the pit because of the shadow from the building.

There is a store known as Landry's Yark Goods Shop situated on the westerly side of Railroad St. opposite the southerly entrance driveway to the station premises.

The accident that resulted in the injuries to the plaintiff occurred at about 7:30 p. m. on November 17, 1951. The lights were on at the station at that time. The plaintiff's husband with the plaintiff and their oldest daughter as passengers drove his automobile from their home to Railroad St. and to the Landry Shop where he let the plaintiff out so she could go into the shop to make a purchase and he was to come back there and pick her up after taking the daughter to Lafayette St. After going to Lafayette St. he drove back to Railroad St. but instead of going to the shop for the plaintiff he drove into the southerly entrance to the station premises, over the driveway in the rear and parked his auto in the open area north of the station building. He parked it headed toward Railroad St. and parallel with the grease pit and about ten feet north of it. There was another car parked almost in frong of his and closer to the end of the pit and neared the gas pumps. He left his auto, went into the station building office, purchased a treasury number lottery ticket from a man by the name of Eastman and then watched from inside the door to the office for the plaintiff to come out of Landry's. After she had completed her purchase, she came out to the sidewalk in front of the shop and looked around for her husband. He saw her come out and stand on the sidewalk and he then came out of the station door and from the steps in front of it he called to her to come over, the car was over there.

He waited for her to cross the street and then preceded her towards his auto. She walked through the space near the gas pumps and toward the other car that was parked near the pit. He then said 'It is over here.' She changed her direction, took a few steps, fell into the pit and was injured.

The plaintiff's husband had been buying lottery tickets of Eastman at the station once a week for about two years but on three or four occasions he had bought them from the defendant. He had driven around the driveway in the rear and parked quite a few times as he did on the evening in question. He was not a regular customer of the defendant at the station but had bought gas there three or four times. The defendant was not at the station on the night the plaintiff was injured. The plaintiff had accompanied her husband to the station four or five times but had always stayed in the car. There was no evidence where the car was parked, driven or stopped on these occasions. Sometimes a man who was a customer at the station would take his wife down street and come back to the station and it was then not unusual for her to come back and get into the auto at the station. There was no evidence to show who Eastman was or that he was employed by the defendant or connected with the regular service station business.

The crucial question here is the status of the plaintiff. Was she a 'business visitor?' Both parties have briefed the status of the plaintiff as affected by the fact that her husband came to the station as a customer for an illegal purpose: i. e. to purchase a lottery ticket. Under the circumstances here in regard to the plaintiff's presence on the premises, we think that the illegal purpose of the husband is immaterial. We will, therefore, for the purposes of this opinion only, assume that he was a 'business visitor' when he entered the premises.

In Wool v. Larner, 112 Vt. 431, 435, 26 A.2d 89, 92, we adopted the definition of 'business visitor' from the Restatement of Torts, § 332 as follows: 'A business visitor is one who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.' Manley v. Haus, 113 Vt. 217, 32 A.2d 668; McAdams v. Raymond S. Roberts, Inc., 117 Vt. 309, 311, 91 A.2d 706; Johnstone v. Bushnell, 118 Vt. 162, 164, 102 A.2d 334. The authors of the Restatement, recognizing the confusion of language which has arisen in the various opinions, have used the terms 'business visitor' and 'gratuitous licensee' to describe what most courts call 'invitee' and 'licensee'. Maher v. Voss, Del.Super., 84 A.2d 527, 528; Wool v. Larner, supra; McAdams v. Raymond S. Roberts, Inc., supra; Manley v. Haus, supra. We, therefore, in this opinion use the term 'business visitor' as the term 'invitee' is used in many of the cases and authorities cited.

The invitation required to qualify one as a business visitor on the premises of another may be either express or implied. Such invitation is implied whenever one makes use of another's premises as the owner intended he shall, or such as he is reasonably justified in understanding the owner intended. Johnstone v. Bushnell, supra, 118 Vt. at page 164, 102 A.2d 334, and cases cited; Bottum's Adm'r v. Hawks, 84 Vt. 370, 384, 79 A. 858, 35 L.R.A.,N.S., 440.

To give a person the standing of a business visitor it must appear that his purpose for entering the premises is one of interest or advantage to the occupant. 'The principle,' says Mr. Campbell in his treatise on negligence, "appears to be that invitation is inferred where there is a common interest or mutual advantage while a license in inferred where the object is the mere pleasure or benefit of the person using it." Coburn v. Village of Swanton, 94 Vt. 168, 172, 109 A. 854, 856, 95 Vt. 320, 325, 115 A. 153; Manley v. Haus, supra, 113 Vt. at page 221, 32 A.2d 668; Lucas v. Kelley, 102 Vt. 173, 176, 147 A. 281; Bottum's Adm'r v. Hawks, supra, 84 Vt. at page 384, 79 A. 858; 38 Am.Jur. Negligence, § 99, pp. 759-760; 45 C.J., Negligence, § 221, p. 813; 65 C.J.S. Negligence, § 32, pp. 483-484, § 43(1), p. 508, § 43(3) b, p. 511; 22 Words & Phrases, Invitee, p. 582-584; Sheridan v. Ravn, 91 Cal.App.2d 112, 204 P.2d 644; Brosnan v. Koufman, 294 Mass. 495, 2 N.E.2d 441, 104 A.L.R. 1177; Cook v. 177 Granite St., 95 N.H. 397, 64 A.2d 327; Shaw v. Piel, 139 Me. 57, 27 A.2d 137.

A person on the premises by invitation may also become a licensee where he uses the premises for purposes or in ways other than those for which they were intended or to which his invitation extends or where he remains on the premises beyond a reasonable time after his invitation has expired. 65 C.J.S., Negligence, § 33, p. 490; Hickman v. First...