Wheeler v. Kallum

• Decision Date: 02 February 1934
• Docket Number: No. 1215.,1215.
• Citation: 68 S.W.2d 591
• Parties: WHEELER v. KALLUM.
• Court: Texas Court of Appeals

68 S.W.2d 591

WHEELER v. KALLUM.

No. 1215.

Court of Civil Appeals of Texas. Eastland.

February 2, 1934.

Rehearing Denied March 2, 1934.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Suit by J. T. Kallum against John W. Wheeler. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.

Cox & Hayden, of Abilene, for appellee.

HICKMAN, Chief Justice.

On January 13, 1933, appellee sustained serious personal injuries by a fall through the awning of a building owned by appellant in the town of Merkel, and the appeal is from a judgment for damages on account of the injuries thus sustained. The lower floor of the building was occupied by tenants; one operating a barber shop, and the other a café. The upper floor was not occupied at the time of the accident, and had not been for a period of two years or more. The door leading into this floor was closed, locked, and barred, and no signs were displayed indicating that this floor was occupied. There was an iron stairway attached to an adjoining building which led only to the second story of appellant's building. This stairway landed on the east end of an awning, and the distance from the landing to the entrance of the second floor across the awning was more than 20 feet. Appellee Kallum was an inspector for the state board of barber examiners, and was in the town of Merkel in discharge of his duties as such inspector. Dr. Wm. M. Gambill, who practiced the profession of dentistry in the town of Merkel, had an invention which he thought would be valuable for use in barber shops, and which he desired to exhibit to appellee. He learned from the barber occupying the lower floor of appellant's building that appellee was in town, and thereupon sought and found him in another barber shop some distance away. Upon making appellee's acquaintance, Dr. Gambill told him of his invention and invited him to his office to inspect it. The office occupied by Dr. Gambill was in a building immediately west of and adjoining appellant's building, but with no connection between it and the awning in front of appellant's building. The approach to his office was by a stairway inside of the building in which same was situated. At the foot of this stairway, and in open view of pedestrians on the sidewalk, his sign was prominently displayed. After completing his duties as inspector in the town of Merkel, appellee, in seeking Dr. Gambill's office, admittedly through mistake, went up the stairway onto the awning of appellant, and as he approached the locked and barred door to the second floor of appellant's building the awning gave way, precipitating him to the sidewalk below and resulting in his injuries.

In answer to special issues, the jury made the following fact findings: (1) The awning to appellant's building was unsafe for people to go upon. (2) Appellant knew of its unsafe condition. (3) Appellee did not know of its unsafe condition, (4) and could not have known it by the exercise of ordinary care. (5) Appellant was negligent in permitting the awning to be in the condition that it was in on January 13, 1933, the date of the injury, (6) which was the proximate cause of the injuries sustained by appellee. (7) Appellant was negligent in failing to place an obstruction or sign on the stairway to prevent persons from ascending it, (8) which was the proximate cause of the injuries received by appellee. (9) Appellee believed that he was going to Dr. Gambill's office at the time he fell. (10) Appellee was not negligent in going upon the awning. Damages were assessed in the amount of $2,250. From a judgment rendered in accordance with the verdict this appeal has been prosecuted.

By proper assignments it is presented that the trial court erred in overruling appellant's request for a peremptory instruction, presented before the charge was read to the jury, and likewise erred in overruling his motion for judgment notwithstanding the verdict. These assignments present the contention that appellee was a trespasser on appellant's premises at the time of the injury, who must take them as he found them, and to whom appellant owed no duty except to refrain from wantonly or willfully injuring him. Appellee in his brief concedes that, if he was a trespasser, he showed no right of recovery, but seeks to uphold the judgment upon the ground that he was an invitee of appellant. If that is the determining issue, the question, to our minds, is not a difficult one. The applicable test is whether appellee had present business relations with appellant which would render his presence of mutual benefit to both. Certain it is that appellee was not on appellant's premises in connection with any of appellant's business, or on any business of any character with which appellant was concerned. On the contrary, he was admittedly there through mistake. He had information that Dr. Gambill occupied an office in that vicinity, and mistakenly thought that the stairway which he ascended led to the doctor's office. No act of appellant was responsible for that mistake. Under these facts it cannot with reason be held that appellee was upon the awning by the invitation, express or implied, of appellant. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756, 8 Am. St. Rep. 611; Fleming v. Texas Loan Agency, 24 Tex. Civ. App. 203, 58 S. W. 971; Kruse v. Houston & Texas Central Ry. Co. (Tex. Civ. App.) 253 S. W. 623; Book v. Heath (Tex. Civ. App.) 181 S. W. 491; Foster Lumber Co. v. Rodgers (Tex. Civ. App.) 184 S. W. 761; Kirby Lumber Co. v. Gresham (Tex. Civ. App.) 151 S. W. 847; Williamson v. G., C. & S. F. Ry. Co., 40 Tex. Civ. App. 18, 88 S. W. 279; Houston Belt & Terminal Ry. Co. v. Rogers (Tex. Civ. App.) 44 S.W.(2d) 420; Ward v. Kellogg, 164 Mo. App. 81, 148 S. W. 174; Printy v. Reimbold, 200 Iowa, 541, 202 N. W. 122, 205 N. W. 211. 41 A. L. R. 1423.

In a well-considered case note to the authority last above cited (41 A. L. R. 1423), the author uses this language: "It seems to be the well-settled rule that one who, through mistake, enters on private premises, occupies the status of a trespasser, and the owner of the premises owes him no duty other than that of refraining from willfully injuring him, or of taking steps to protect him if his danger is discovered. Being a trespasser, he enters at his own peril, and the owner is under no duty to anticipate the entry and provide against his injury." Many cases supporting the note are cited. One of these cases is Blatt v. McBarron, 161 Mass. 21, 36 N. E. 468, 42 Am. St. Rep. 385. In that case a constable had in his hand for service a writ against a person who, as he supposed, resided in a certain building, but who in fact did not reside there, but in another house on the opposite side of the street, and who was not in the building which the constable entered. The owner of the building had done nothing to induce the constable to believe that the person against whom the process ran occupied his building. The officer was injured because of the dangerous condition of the building in which he entered through mistake. The opinion of the court, after detailing these facts, employed this language: "The plaintiff was a trespasser, because his office and his writ gave him no right to enter upon the property of a stranger, unless the person whom the writ directed him to serve with a summons either resided there or was actually in the building."

Having concluded that appellee was a trespasser at the time of his injury, does it follow that appellant was not liable for the injuries sustained by him? To state the question differently, does the common-law rule that a trespasser must take the premises as he finds them, and the owner or occupier thereof owes him no duty other than the negative one of refraining from willfully or wantonly injuring him, obtain in Texas? The rule does not obtain as between railroad companies and trespassers upon their tracks. It is the settled rule of law in this state that such companies owe to such trespassers the affirmative duty of exercising reasonable care to discover their presence thereon, and that they may be held liable for injuries resulting from their failure to keep a proper lookout to discover their presence. Houston & T. C. Ry. Co. v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; St. Louis Southwestern Ry. Co. v. Watts, 110 Tex. 106, 216 S. W. 391; Pecos & N. T. Ry. Co. v. Suitor, 110 Tex. 250, 218 S. W. 1034; Sears et al. v. T. & N. O. Ry. Co. (Tex. Com. App.) 266 S. W. 400; Wichita Falls, R. & F. W. Ry. Co. v. Crawford (Tex. Civ. App.) 19 S.W.(2d) 166.

The doctrine of...