Sons v. Basham

• Decision Date: 17 September 1919
• Court: Virginia Supreme Court
• Parties: JOHN P. PETTYJOHN & SONS. v. BASHAM.

100 S.E. 813

JOHN P. PETTYJOHN & SONS.

v.BASHAM.

Supreme Court of Appeals of Virginia.

Sept. 17, 1919.

Sims, J., dissenting.

Error to Law and Chancery Court of City of Roanoke.

Action by one Basham against John P. Pettyjohn & Sons. There was a judgment for plaintiff, and defendants bring error. Reversed.

Staples & Cocke, of Roanoke, and Wilson & Manson, of Lynchburg, for plaintiffs in error.

Jackson & Henson, of Roanoke, for defendant in error.

BURKS, J. John P. Pettyjohn & Sons contracted with the owners to build an addition to Hotel Roanoke, in the city of Roanoke. They employed the Roanoke Sheet Metal Company, as a subcontractor, to do the plumbing on the addition, and the plain-tiff was an employe of this subcontractor. In the course of the construction of the building the defendants, who were doing the carpenter's work themselves, erected a scaffold along the face of the south gable of the building for the purpose of enabling their workmen to "case" certain window frames in the gable and to put the cornices thereon. This work had been completed, but the scaffold had not been taken down. The work for which the scaffold was primarily designed did not require the workmen to go beyond the west face of the last window on the west from which the support for the scaffold projected. The supports for the scaffold upon which the floor of the scaffold rested are spoken of by the witnesses as "pudlocks." They were 2x12 inch joists, set on edge, run out of the window, and nailed at the other end to uprights run from the scaffold below. The floor of the scaffold consisted of loose boards laid on the pudlocks, but not nailed thereto. This floor extended a short distance beyond the last pudlock. The carpenters work on the gable had been completed and the scaffold had proven safe and satisfactory for the purpose for which it was constructed. The plaintiff came out upon the scaffold through the east window in the face of the gable, walked the length of the scaffold the west end thereof, and, while endeavoring to climb from the scaffold over the eaves onto the roof where his work was to be done, the scaffold gave way and precipitated him to the ground causing a compound comminuted fracture of one leg and breaking one of his arms. For this injury, the present action was brought. The case was submitted to a jury; but, being unable to agree upon a verdict, they were discharged, and, by consent of the parties, it was then submitted to the judge of the trial court upon the evidence which had been adduced before the jury, and the trial court gave judgment for the plaintiff for the sum of $2,000.

The declaration alleged negligence on the part of the plaintiff in error: (1) In the use of defective materials; (2) in the fail ure to nail the floor of the scaffold; and (3) in the failure properly to construct and brace the scaffold. The first two of these allegations were abandoned at the hearing in this court. The plaintiffs in error defended on the ground that they had not been guilty of any negligence in the construction of the scaffold, and, if they had, the defendant in error was a mere licensee who took things as he found them, and they did not owe him the duty of making the scaffold safe for the use made of it by him.

The evidence is not clear as to how much of the scaffold fell down, and the parties advanced different theories as to how and why it fell. It is admitted, however, that it fell while the defendant in error was upon it in the discharge of his duties as a plumber. It was claimed by the defendant in error that the pudlock was not properly nailed and braced at the end next to the gable, while the plaintiffs in error claimed that the defendant in error fell from the roof to the scaffold, causing the latter to give way, or that he walked out on the ends of the boards of the floor beyond the last pudlock, causing them to tilt and give way, or that his efforts to climb upon the roof from the scaffold caused a lateral pressure upon the scaffold, which the latter was not built to sustain. There was evidence tending to sustain each of these theories, and verdict in favor of either could not have been said to have been clearly against the evidence, or without evidence to sustain it. The trial court, sitting in place of a jury, found for the defendant in error, and its finding on this point cannot be disturbed. Generally, where questions of fact are submitted to the decision of the trial judge, without the intervention of the jury, his decision thereof is entitled to the same weight as the verdict of a jury. Delaware L. & W. R. Co. v. Cotten, 113 Va. 563, 565, 75 S. E. 122. But where the jury have been discharged because of their inability to agree upon a verdict, the decision of the trial judge upon the same testimony which was submitted to the jury is not entitled to the same weight as it would otherwise have had.

The position of the plaintiff in error, however, is that Basham was a mere licensee and assumed the risk of danger from the scaffold if it was defectively constructed. He was not a servant of Pettyjohn & Sons, but of a metal company by whom he was employed. As to Pettyjohn & Sons he was a mere third person, and third persons can only come upon the permanent premises of another in the capacity of trespassers, licensees, or invitees. But there is a marked difference between the duties which the occupant of land owes to trespassers, licensees, and invitees, respectively. Trespassers and bare licensees, as arule, take the risk of the place as they find it. Generally, the owner or occupant of the soil does not owe to a trespasser the duty of prevision, preparation, or lookout, but only the duty not to injure him intentionally or wantonly. If, however, the trespass is of such nature and so frequent as to charge the occupant with notice thereof, and of the danger likely to ensue to the trespasser, then the owner is chargeable with the duty of lookout for such trespasser, with such equipment and appliances as he is then using in the ordinary conduct of his business; but he does not owe him the duty of prevision or preparation.

In the case of licensees, the occupant is charged with knowledge of the use of his premises by the licensee, and, while not chargeable with the duty of prevision or preparation for the safety of the licensee, he is chargeable with the duty of lookout, with such equipment as he then has in use to avoid injury to him at the time and place where the presence of the licensee may be reasonably expected. The duties of the occupant to the licensee and to the known frequent trespasser are the same, but the licensee is exempt from responsibilities of a trespasser.

The duties of the occupant to the invitee are entirely different. The latter comes by invitation, express or implied, and may reasonably expect to come with safety. The invitation, however, is rarely, if ever, unlimited, and especially when implied, but to the extent of the invitation the occupant owes to the invitee the duty of prevision, preparation, and lookout. He must use ordinary care to see that his premises are in a reasonably safe condition for the use of the invitee In the manner, and to the extent, that he has invited their use. The cases on the subject of the duty to trespassers, licensees, and invitees, respectively, are very numerous, and there is very little conflict in the holdings. We cite by way of illustration a few of them from this jurisdiction. Those from other jurisdictions are too numerous to cite, but will be found in any well considered article on negligence. Many of them are referred to in the cases hereinafter cited. Seaboard Air Line Ry. v. Joyner,-92 Va. 354, 23 S. E. 773; Lunsford v. Colonial Coal & C. Co., 115 Va. 346, 79 S. E. 348; Walker v. Potomac, etc., R. Co., 105 Va. 226, 53 S. E. 113, 4 L. R. A. (N. S.) 80, 115 Am. St. Rep. 871, 8 Ann. Cas. 862; Norfolk & W. R. Co. v. De Board, 91 Va. 700, 22 S. E. 514, 29 L. R. A. 825; Blankenship v. Ches. & O. Ry. Co., 94 Va. 449, 27 S. E; 20; Ches. & O. Ry. Co. v. Rogers, 100 Va. 324, 41 S. E. 732; Norfolk & W. R. Co. v. Wood, 99 Va. 156, 37 S. E. 846; Williamson v. Southern Ry. Co., 104 Va. 146, 51 S. E. 195, 70 L. R. A. 1007, 113 Am. St. Rep. 1032; Chesapeake & O. Ry. Co. v. Farrow, 106 Va. 137, 55 S. E. 569, 10 Ann. Cas. 12; Nichols v. Washington, O. & W. R. Co., 83 Va. 99, 5 S. E. 171, 5 Am. St. Rep. 257; Richmond & M. R. Co. v. Moore, 94 Va. 493, 27 S. E. 70, 37 L. R. A. 258; Clark v. Fehlhaber, 106 Va. 803, 56 S. E. 817, 13 L. R. A. (N. S.) 442. We express no opinion as to the rights of the house guests or the duties owing to them.

Upon the evidence, viewed from the standpoint of a demurrer to the evidence, we must hold that the scaffold was improperly and insecurely constructed for the use to which it was put by the plaintiff. If Basham was a mere licensee, then he took upon himself the risk of the scaffold as he found it, and cannot recover; but if he was an invitee, and the invitation extended to that use of the scaffold, then Pettyjohn & Sons are liable to him for the injury sustained in consequence of its fall. But it is sometimes difficult to determine whether the circumstances make a case of invitation, in a technical sense, or of mere license. Usually, an invitation will be inferred where the visit is of common interest or mutual advantage to the parties, while a license will be inferred where the object is the mere pleasure or benefit to the visitor. Bennett v. Railroad Co., 102 U. S. 577, 26 L. Ed. 235. The extent of the invitation also is not free from difficulty, where the invitation is implied.

In the case at bar, the evidence fails to show that the use of the scaffold by Basham for getting upon the roof was for the common interest and mutual benefit of both parties. It was built for use in doing work on the face of the gable, and was never intended to be used as a means of access to the roof. There were communicating doors between all the rooms in this...