Taylor v. McCowat-Mercer Printing Co.

• Decision Date: 13 June 1939
• Docket Number: No. 4.,4.
• Citation: 27 F. Supp. 880
• Parties: TAYLOR v. McCOWAT-MERCER PRINTING CO.
• Court: U.S. District Court — Western District of Tennessee

27 F. Supp. 880

TAYLOR v. McCOWAT-MERCER PRINTING CO.

No. 4.

District Court, W. D. Tennessee, E. D.

June 13, 1939.

Murchison & Manhein and David P. Murray, all of Jackson, Tenn., and Joe C. Davis, of Lexington, Tenn., for plaintiff.

W. G. Timberlake and Barham & Heiskell, all of Jackson, Tenn., and Winchester & Bearman, of Memphis, Tenn., for defendant.

MARTIN, District Judge.

In this tort action for death by wrongful act, the administrator was awarded $7,500 damages by jury verdict; and judgment thereon has been entered.

A motion for a new trial is now presented, embracing also a motion, under Rule 50(b), Civil Procedure, 28 U.S.C.A. following section 723c, to set aside the jury verdict and judgment, and to grant defendant's motion for a directed verdict.

The substantial questions are: (1) Did the court properly permit the jury to decide whether the deceased was an invitee, or a licensee, in the defendant company's building when he met his fatal injuries; (2) and, if so, were the instructions to the jury and the rulings on the special requests correct?

The defendant contends that, considering all the evidence in the light most favorable to the plaintiff, his intestate was, as matter of law, a mere licensee, toward whom the defendant owed only the duty not to injure him willfully and wantonly.

The record reveals that McCowat-Mercer Printing Company operated a printing plant on the fourth floor of an office building, owned by it, in the business district of Jackson, Tennessee. The defendant leased the other floors of the building to tenants engaged in various business and professional activities. During normal business hours, an elevator was operated in the building by a girl employee. After six o'clock P. M., a regular night-shift employee of the printing company, E. P. Collier, habitually used the elevator, as did other employees when engaged in night work. Collier customarily worked from five o'clock in the afternoon until one o'clock in the morning.

On his way to work on April 18, 1938, Collier dropped into a small down-town restaurant, the Dixie Castle, and placed an order for food and drink to be delivered to him on the fourth floor of defendant's building at nine o'clock that night.

Shortly after nine o'clock, the Superintendent of the printing plant of the defendant company, J. C. Holcomb, at the request of Collier, called in person at the Dixie Castle Restaurant to remind the proprietor that Collier's order had not been filled, and to request the delivery of the consumable merchandise.

Soon thereafter, the deceased, Floyd Taylor, who was twenty years old and was employed as a delivery boy by the Dixie Castle, was dispatched with the food and drink. His body was discovered, shortly afterwards, at the bottom of the elevator shaft in defendant's building.

There was substantial evidence of negligence on the part of an employee of defendant, in leaving the door to the elevator shaft open some five or ten minutes before Floyd Taylor entered, from the street, the vestibule of defendant's building. The jury expressly so found in answering specific questions submitted by the defendant; and the court concurs in their findings.

There was testimony that for a long time prior to the accident employees of the defendant company frequently ordered food and drink served them while they were working on the premises of their employer. It appears that Superintendent Holcomb was aware of this custom. The fact that the President of the company testified that he knew nothing of the custom is of no weight, because this gentleman admitted that he did not even know that, at the time of the accident, anyone worked at night. It might be observed from the record that the President was not a diligent official in the supervision of his company's affairs.

The proof is convincing that Holcomb, as Superintendent of the mechanical or printing plant of defendant, was the vice-principal in control of the work, insofar as the employee Collier was concerned; and the Superintendent, himself, delivered Collier's message to the Dixie Castle, to send over the food and drink which plaintiff's intestate was carrying when he met his death.

The jury found that Floyd Taylor was killed through the negligence of an employee of the defendant company, in leaving the elevator shaft open. The defendant's Superintendent in charge of its plant work that night had expressly invited Taylor upon the premises. When he made his fatal journey, the luckless young man entered the defendant's building in direct response to Collier's message, re-delivered by Superintendent Holcomb to Dixie Castle, to deliver food and drink on the fourth floor of defendant's building. The plaintiff's intestate was, therefore, an express invitee, or at least an implied one.

The Tennessee decisions govern upon the applicable substantive law (Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487), and support this conclusion.

The latest Tennessee decision in point is American National Bank v. Wolfe, Court of Appeals of Tennessee, Middle Division, 125 S.W.2d 193, in which the state Supreme Court denied certiorari on March 4, 1939. The facts were that a woman, who was not a customer of a bank, entered its banking house to obtain change for a five dollar bill. After obtaining the desired change, she sought a ladies' rest room in the bank building; and while descending a stairway, fell and was injured. She was concededly an implied invitee into the building for the purpose for which she originally entered. Whether under the facts of the case she had reasonable ground to believe that she was invited or expected to descend the stairway was held a question for the jury. A judgment for the plaintiff was affirmed.

The Tennessee Court noted the difference in the situation found in Peebles v. Exchange Building Co., 6 Cir., 15 F.2d 335, in which the owner of an office building was held not liable to a woman, who after visiting a doctor's office as an acknowledged invitee, was injured by falling on an unlighted stairway while searching for a toilet, although she knew that the use of toilets was limited to those to whom tenants of the building furnished the means of admittance. An earlier opinion of the Western Section of the Tennessee intermediate appellate court, Rhodes v. J. R. Watkins & Co., 16 Tenn.App. 163, 165, 65 S.W.2d 1098, 1099 decided Dec. 19, 1932 is readily distinguishable from the later case under discussion, in that in the former, it appeared that the injured woman was not on the premises of the defendant company for its benefit or "in any matter connected with defendant's business." She was there for the sole purpose of seeking employment for herself.

The Tennessee Court in the American National Bank case, supra, quoted with approval 20 R.C.L. 69, Sec. 60, and cited as authorities for the statement quoted, Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L. R.A.,N.S., 1045, 17 Ann.Cas. 576, and notes; Randolph v. Great Atlantic & Pacific Tea Co., 3 Cir., 64 F.2d 247: — "`A person who goes upon premises for business purposes is not deprived of the right to protection against defects by the fact that, at the moment of the injury, he was not engaged in the business for which he came, but was pursuing a purpose of his own.'" 125 S.W.2d 196.

The Court quotes, also, from Robinson v. Leighton, 122 Me. 309, 119 A. 809, 30 A. L.R. 1386, 1389: "`An invitation (to enter premises) is implied when the owner, by acts or conduct, leads another to the belief that the use is in accordance with the design from which the place was adapted and allowed to be used in mutuality of interest.'"

Clapp v. LaGrill, 103 Tenn. 164, 52 S. W. 134, urged by counsel for the defendant as authority for its position on this motion, when carefully considered, seems to support the action of this court in submitting the case to the jury. In the decision cited, the court held that whether the owner of real estate adjacent to a public highway has extended an invitation to the public to enter upon and use it is a question for the jury to determine from all the facts and circumstances, and should not be assumed arbitrarily to be one way or the other in the court's charge to the jury.

In the case at bar, the jury were charged, inter alia: "If you find from a preponderance of the evidence that the defendant, McCowat-Mercer Printing Company, expressly or by implication, invited the deceased, Floyd Taylor, to come upon its premises, whether for...