State v. Machen

• Decision Date: 20 April 1933
• Docket Number: 23.
• Parties: STATE, TO USE OF LORENZ, v. MACHEN.
• Court: Maryland Court of Appeals

165 A. 695

164 Md. 579

STATE, TO USE OF LORENZ, v. MACHEN.

No. 23.

Court of Appeals of Maryland

April 20, 1933

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by the State of Maryland, to the use of August Lorenz, father of William Lorenz, deceased, against Arthur W. Machen, Jr. trustee for the estate of Mrs. Sidney Turner Dyer. From judgment for defendant, plaintiff appeals.

Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Edgar Allan Poe, Jr., of Baltimore, for appellant.

Alexander Armstrong and H. Vernon Eney, both of Baltimore (Armstrong Machen & Allen, of Baltimore, on the brief), for appellee.

BOND Chief Judge.

An appeal from a judgment for a defendant on demurrer to the plaintiff's declaration presents in this case a question whether allegations of accidental death to a boy of ten years, while playing on the defendant's property, would if proved establish liability on the defendant for damages. The allegations are these: The defendant was a trustee holding title to the property with all powers of an owner, including that of improving by grading and excavating. The property is unfenced, unimproved land, the soil of which is composed mostly of sand and gravel, and there is a bank of such soil on one part of the property ten or twelve feet high, about thirty feet from a public street, and in plain view from the street. The defendant, his agents and employees, had been carrying on work with a steam shovel, and the bank was artificially made in the course of these shoveling operations, and was in some places precipitous and in other places concave; and there was a cave or tunnel left in one bank sufficiently large to be occupied by several children at once. Children of the neighborhood and others living at a distance had been attracted to this land and had been using it openly and notoriously, and to the knowledge of the defendant, for several years, as a playground. There was no attempt made to keep the children off; but, on the contrary, a caretaker employed by the defendant permitted the children to come there and play, and gave them express authority to do so, although he knew or should have known that the property was unsafe for children of tender years. Some weeks prior to the accident, the deceased boy and others, seeing the cave or tunnel, began to play in it, acting upon the permission given them to play there, and they worked during those weeks to enlarge the cave or tunnel, with the full knowledge and acquiescence of the caretaker. This boy was caught in a caving-in of the earth. The extent of the enlargement dug is not clearly alleged. The defendant argues that these allegations contain a statement of impossible fact because it is undeniably true that a steam shovel works only in a forward ascending curve, and could not make a cavity in a bank; but the court is not able to say from its own knowledge that a shovel could never, by any movement, leave a cavity in some spot. Testimony would be needed.

The several forms of expression of the caretaker's attitude or action state only an acquiescence or permission for the boys to play in what is described as the cave, and do not allege invitation or inducement, express or implied, as when persons are led to come on property on business of the owner or otherwise. Benson v. Baltimore Traction Co., 77 Md. 535, 539, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436. It has sometimes been argued that attraction for children in a place or object on land, as left by the owner in the course of work on the property, amounts to such an invitation or inducement by the owner himself, and removes children whose presence is permitted from the legal classification of licensees and places them in that of invitees, with the burden of care for them as invitees cast upon the owner; but that argument does not mean that the owner by his permission has in fact brought the children on the property intending and desiring that they should come there, and into the position of danger, as he would when bringing business visitors there. And especially does it not mean that children are in fact brought to dig and make a cave or tunnel for themselves. The case here is that the owner has merely permitted or acquiesced in the use of the land by playing children, and therefore he has not invited them to incur any dangers; and if a duty of care similar to that owing to invitees is imposed upon him it must be by way of a relaxation of the rule that mere permission bestows no rights, and imposes only the more limited obligation with reference to licensees. Burdick, Law of Torts (4th Ed.) 199, etc. The question submitted is: Given the facts that boys of ten years, among other children, were accustomed and permitted to play on this open land, that grading operations which had been carried on by the owner left in a bank at one place a cavity to which some ten year old boys were attracted as a place suitable for digging an enlarged cave or tunnel, that for several weeks the boys dug and enlarged the cave, all with the knowledge and acquiescence of a caretaker on the property, was there a legal duty cast upon the trustee holding the property to protect the boys from danger of caving-in of the earth, and was such a duty violated in the caretaker's failure to perform it? The defendant raises, on his side, a question whether the caretaker's attitude and inaction could give rise to a relation between the owner and the boys playing on the property, whatever duty might be placed on the owner for his own action or omission, but it has not been found necessary to consider this question; and some others argued are likewise left unconsidered.

In several cases this court has had to consider claims of persons on property of others by license or permission, as distinguished from invitation or inducement. Maenner v Carroll, 46 Md. 193; Baltimore & O. R. R. Co. v. State, Use of Allison, 62 Md. 479, 50 Am. Rep. 233; Benson v. Baltimore Traction Co., supra; Kann v. Meyer, 88 Md. 541, 41 A. 1065; Baltimore v. De Palma, 137 Md. 179, 112 A. 277. And the decisions in those cases have declared the familiar principle that permission or license gives leave only to take the property as the visitors find it, and that the owner or occupant undertakes no duty to those visitors who come for their own pleasure or convenience, and not at his invitation or upon inducement, express or implied, from a common advantage, except that, being aware of their presence, he must not injure them willfully or entrap them. "A licensee must take the property as he finds it, and is entitled only not to be led into danger by 'something like fraud.' " Pollock, Torts (11th Ed.) 544. "He who is receiving the gratuitous favors of another has no such relation to him, it is said, as to create a duty to make safe or better than it happens to be, the place where the hospitality is tendered. The licensee must take...