Singleton v. Charlebois Const. Co.

• Decision Date: 07 May 1985
• Docket Number: No. WD,WD
• Citation: 690 S.W.2d 845
• Parties: Ted L. SINGLETON and Eunice N. Singleton, Appellants, v. CHARLEBOIS CONSTRUCTION CO., a Missouri Corporation and Caudle Material & Supply Co., a Missouri Corporation, Respondents. 35978.
• Court: Missouri Court of Appeals

Page 845

690 S.W.2d 845

Ted L. SINGLETON and Eunice N. Singleton, Appellants, v. CHARLEBOIS CONSTRUCTION CO., a Missouri Corporation and Caudle Material & Supply Co., a Missouri

Corporation, Respondents.

No. WD 35978.

Missouri Court of Appeals,

Western District.

May 7, 1985.

Mallory V. Mayse, Tull and Mayse, Columbia, for appellants.

Douglas L. Van Camp, J. Kent Lowry, Hendren and Andrae, Jefferson City, for respondent Caudle Material and Supply, Inc.

Edwin J. Carlton, Oliver, Walker, Carlton and Wilson, Columbia, for respondent Charlebois Const. Co.

Before LOWENSTEIN, P.J., and NUGENT and BERREY, JJ.

LOWENSTEIN, Presiding Judge.

This case involves a tort action for personal injuries to plaintiff/appellant Ted Singleton and his wife's consortium claim. On a Saturday afternoon, April 15th, Ted and his wife decided to look around a house under construction in contemplation of purchasing it. The new home in Columbia, Missouri was being built by respondent Charlebois Construction Co. (Charlebois). The partially finished home had a "For Sale" sign in the front yard. The sign simply gave the real estate company's name and phone number. Ted had seen the sign in the yard of this site some two weeks earlier. The house had no front door or garage door, nor any barricades, so Ted and his wife proceeded inside through the garage opening without calling the real estate office or asking anyone's permisison. No one else was present. Singleton testified there were times when prospective purchasers would go on the property where new homes were being constructed by Charlebois in this sub-division when no one, including workers was present. At the time of the accident the house was "roughed in"--the next step was to hang the sheetrock.

While inspecting the dining room, Ted attempted to look for the possibility of a second heat register behind a stack of 20 sheets of sheetrock which had been delivered and stacked vertically on edge against the south wall by the respondent Caudle Material & Supply, Co. (Caudle), a supplier to Charlebois. As he tried to peer over the stack and look down between the studs of the unfinished wall, the stack, weighing about a ton, toppled over against Ted, pinning him underneath and causing an open, dislocated fracture of his right ankle. In May of the same year Singleton and his wife bought a new home in the same sub-division from Charlebois.

At the close of plaintiffs' evidence, the trial court directed verdicts for both Charlebois and Caudle, finding that as a matter of law the Singletons were not business invitees since the "For Sale" sign did not invite people to go in without further permission.

The court will first address the points on appeal as they relate to Charlebois, the undisputed owner of the property. As to this defendant the issue is the determination of the status of Singleton--if he was an invitee, the court was in error, if he was a licensee or trespasser the ruling was correct. At the stage of a directed verdict after plaintiff's case, the matter of Singleton's fault or negligence was and is not an issue.

The Singletons' first contend that their status as business invitees was a question for the jury and not proper for a directed verdict. However, the evidence which went to the establishment of their status was not disputed. The only dispute was over the application of law to the fact a "For Sale" sign was placed in the yard of a house under construction. As the court held in Friend v. Gem International, 476 S.W.2d 134, 140 (Mo.App.1971), "a determination of the status of plaintiff at the time of [his] injury was for the court to determine." This point is denied.

The main question presented is whether the trial court erred in finding as a matter of law that the Singletons were not business invitees. Implicit in the court's judgment is, that as a matter of law Singleton was at most a licensee or perhaps trespasser. Hanks v. Riffe Construction Company, 232 Kan. 800, 658 P.2d 1030, 1032 (banc 1983). In reviewing a directed verdict at the close of plaintiff's case this court must consider the evidence and all reasonable inferences therefrom in the light most favorable to the Singletons in order to determine whether they made a submissible case. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984); Jackson v. Radtke, 673 S.W.2d 40, 44-45 (Mo.App.1984). It is further noted this opinion only covers the matter of the status of the plaintiff's relative to the standards of duty and care owed them and whether as a matter of law the directed verdict entered was correct. Missouri courts have held that the Restatement (Second) of Torts accurately states the applicable Missouri law in the area of invitees. Gilpin v. Gerbes Supermarket, 446 S.W.2d 615, 618 (Mo. banc 1969). Section 332(3) defines a business invitee as "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Generally, if the entry was for some real benefit to the possessor the entrant is an invitee; if with express or implied consent, but for the entrant's own purposes, he is a licensee; and if entry without consent or privilege by the possessor the entrant is a trespasser. Cunningham v. Hayes, 463 S.W.2d 555, 558 (Mo.App.1971). Stated generally the duty owed these persons is as follows: an invitee is owed the duty of ordinary care by the owner to keep the premises reasonably safe, Gilpin, supra, 446 S.W.2d at 618; Restatement (Second) of Torts § 343. As to conditions on the land the possessor owes a licensee a duty to exercise reasonable care as to a dangerous condition known to the possessor and not likely to be discovered by the licensee. Wells v. Goforth, 443 S.W.2d 155, 158 (Mo. banc 1969); Davis v. Jackson, 604 S.W.2d 610, 612 (Mo.App.1980). A trespasser, whose presence is not anticipated, is not owed a duty by the possessor to put the land in a reasonably safe condition, McVicar v. W.R. Arthur & Co., 312 S.W.2d 805, 812 (Mo.1958), but along with other exceptions, once the presence becomes known, the significance of the status of invitee, licensee or trespasser disappears and a uniform duty of reasonable care is owed. Cunningham, supra, 463 S.W.2d at 559.

Charlebois' brief does not contest the second prong of the test, i.e. whether there is a mutual economic benefit. It is clear the Singletons did indeed benefit Charlebois by their visit since they purchased a new house in that subdivision. The critical determination is whether the "For Sale" sign containing only the name of a real estate company and telephone number constituted an invitation.

The Missouri Supreme Court held in Gilliland v. Bondurant, 59 S.W.2d 679, 686 (Mo.1933), that it makes no difference in the owner's duty to the invitee whether the invitation is express or implied. The court quoting 45 C.J. 810 § 220 said an invitation may be implied from dedication, customary use, or enticement, allurement, inducement to enter or manifested by the arrangement of the premises or the conduct of the owner. Accord : Happy v. Walz, 213 S.W.2d 410, 415 (Mo.1948); Crown Cork and Seal Company v. Kane, 213 Md. 152, 131 A.2d 470, 473 (App.1957). In Restatement (Second) of Torts § 332 comment b., it defines invitation as "conduct which justifies others in believing that the possessor desires them to enter ... Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation." (Emphasis added.)

In this case the president of Charlebois testified that from time to time houses under construction would have "for sale" signs in the front yard, and that he had observed families take a closer inspection of these houses. There was no evidence that these other families had made an appointment with the real estate company. However, the president of Charlebois would escort them through the house.

Similarly Charlebois' construction superintendent testified it was a regular practice in the summertime for people to walk onto house projects to look at them. He would never tell them to leave; instead he would show them around and sometimes take their name and perhaps furnish that to his employer. Also, Ted Singleton testified that it was a pretty common occurrence to see families look at...