Opinion
March 28, 1949.
1. Negligence — duty of owner to invitee — to trespasser.
The duty of the owner of a structure which collapsed resulting in the death of a person upon it was and is to use reasonable care to maintain the place in a reasonably safe condition if the deceased was an invitee, but if he was a trespasser the duty, absent knowledge of his exposure to a known danger, was no more than to refrain from wanton or wilful injury.
2. Negligence — trespasser, not an invitee.
When the person killed by the collapse of gravel bins had no duty to perform upon or around the bins, and had not been invited to go upon the structure, but on the contrary there had been a general request and warning both to deceased and to others to keep off, his status was that of a trespasser, and in the absence of an actual or imputed knowledge by the defendants of an apparent or latent defect presaging collapse, they owed him no other duty than that owed to a trespasser.
3. Trespasser — duty owed as to construction of collapsed gravel bins.
When a decedent has been killed by the collapse of gravel bins in and upon which decedent was a trespasser at the time, testimony to the effect that the method of construction of the bins and the supporting timbers were inadequate, is immaterial in the absence of an actual or imputed knowledge by the defendants of an apparent or latent defect presaging collapse.
4. Negligence — defined and illustrated.
Negligence is the failure to use reasonable care, but to be actionable it must result proximately in injury to one to whom the obligation of due care is owend. Injury of itself confers no legal right; danger of itself is not negligence, and negligence of itself is not liability.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, J.
Brandon, Brandon, Hornsby Handy, for appellant.
Points 1, 2 3. Prejudicial and reversible error committed by the court granting instructions 10, 11, and 12 for the defendants.
Instruction Number 10. "The court instructs the jury for the defendants that in order for you to find that the plaintiff's deceased husband was an invitee upon the gravel washer of the defendants, the plaintiff must prove to your satisfaction by a preponderance of the creditable evidence that the plaintiff's deceased husband was upon the gravel washer by the actual or implied invitation of the defendants and for the benefits of the defendants."
Instruction Number 11. "The court instructs the jury for the defendants, that if you believe from a preponderance of evidence in this case that the decedent had been warned to keep off the structure herein complained of, where he received his injury, having been so warned recently prior to such injuries by the defendants or their servants or agents, and you further believe from a preponderance of the evidence that decedent's business did not require his presence on the structure in question in order to carry out his work or business with the defendants, if any, then you are instructed to find a verdict for the defendants."
Instruction Number 12. "The court instructs the jury that although you find from the evidence that the plaintiff's deceased husband was upon the premises of the defendant as an invitee, then unless the plaintiff has further proved to your satisfaction by a preponderance of the creditable evidence that the plaintiff's deceased husband was upon the gravel washer of the defendant at the actual or implied invitation and with the actual or implied permission of the defendants and for the defendants' benefit, then you will find that the plaintiff's deceased husband was either a trespasser or a licensee upon such gravel washer."
38 Am.Jur. 754, Secs. 96, et seq; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213; Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178; 38 Am. Jur. 759, Sec. 99; 38 Am. Jur. 761, Sec. 100, and cases cited therein; Bell v. Houston S.R. Co., 132 La. 88, 60 So. 1029, 43 L.R.A. (N.S.) 740; Robertson v. Yazoo Mississippi Valley R.R. Co., 152 Miss. 333, 118 So. 182; Yazoo Mississippi Valley R.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; S.H. Kess Co. v. Markline, 117 Miss. 1, 77 So. 858.
Point 4. Prejudicial and reversible error committed by the court granting Instruction 13 for the defendants.
Instruction Number 13. "The court instructs the jury for the defendants that if you believe from the evidence in this case that plaintiff's decedent was an invitee of the defendants, or any one of them, on the occasion of the jury herein complained of, then the defendants were under no obligation or duty to the plaintiff's decedent to warn the decedent of the perilous condition of the structure in question, unless such condition was known to the defendants and not known to the decedent, so that, unless you believe from a preponderance of the evidence in this case that the defendants or some of them had knowledge of the latent defects in the structure in question, and you further believe from a preponderance of the evidence of the case that the decedent did not have knowledge of such latent defects, then there was no duty upon the part of the defendants to warn the decedent of the danger of the latent defects in the structure in question."
64 C.J. 531, Secs. 482, et seq; 53 Am. Jur. 477, Secs. 605, et seq; 53 Am. Jur. 467, Sec. 592; Miss. Code of 1942, Annotated, Sec. 1530; Dixie Stockyard v. Ferguson, 192 Miss. 166, 4 So.2d 724; Griffin v. Griffin, 93 Miss. 651, 46 So. 945; Reed v. Yazoo Miss. Valley R.R., 94 Miss. 630, 47 So. 670; Godfrey v. Medidian Light R. Co., 101 Miss. 565, 58 So. 534; French v. Sayle, 63 Miss. 386; Harris, et al. v. Pounds, 185 Miss. 688, 187 So. 892; Marble v. State, 15 So.2d 693; Hooks v. Mills, et al., 101 Miss. 91, 57 So. 545; Barker v. Justice, et al., 41 Miss. 240; Stringer v. State, 38 So. 97; Gordon v. State, 75 Miss. 543, 46 So. 609; DeSilva v. State, 91 Miss. 776, 45 So. 611; Kidwell v. State, 84 Miss. 475, 36 So. 393; Haynor v. Excelsior Spring Lights, etc. Co., 129 Mo. App. 691, 108 S.W. 580; Martin v. Harvey, 57 Neb. 304, 77 N.W. 808; 64 C.J. 532, et seq.
Point 5. Prejudicial and reversible error committed by the court granting instruction 3 for the defendants.
Instruction Number 3. "The court instructs the jury that if after careful review of the evidence it is not satisfied that the plaintiff has proved her case by a preponderance of the evidence, or if the defendants' evidence outweighs that of the plaintiff, then your verdict must be for the defendants."
Points 6. Prejudicial and reversible error committed by the court granting instruction 4 for the defendants.
Instruction Number 4. "The court instructs the jury for the defendant, Elmer Willard, that unless you believe, from a preponderance of the evidence in this case, that Elmer Willard was a member of the co-partnership, Natchez Construction and Supply Company, then you should find a verdict for the defendant, Elmer Willard."
Point 7. Prejudicial and reversible error committed by the court granting instruction 5 for the defendants.
Instruction Number 5. "The court instructs the jury that a pure accident without negligence on the part of any defendant is not actionable, and if the jury believes the facts in this case are of such character that it would come under the head of unavoidable accident, the plaintiff cannot recover and you shall find for the defendants."
Point 8. Prejudicial and reversible error committed by the court granting instruction 6 for the defendants.
Instruction Number 6. "The court instructs the jury that no presumption of negligence on the part of the defendants, or any one of them, arises merely upon a showing that an injury has been sustained, or that death has resulted therefrom, by one upon the premises of the defendants. The mere happening of an accident is not proof of negligence, and does not in and of itself entitle the plaintiff to recover."
Point 9. Prejudicial and reverrsible error committed by the court granting instruction 7 for the defendants.
Instruction Number 7. "The court instructs the jury that the plaintiff's deceased husband may have been upon the premises of the defendants as an invitee but still may have been a trespasser or licensee upon the gravel washer of the defendants."
Point 10. Prejudicial and reversible error committed by the court granting instruction 8 for the defendants.
Instruction Number 8. "The court instructs the jury that if you find from the evidence that the plaintiff's deceased husband was a trespasser upon the gravel washer of the defendants, then the plaintiff must prove by a preponderance of the credible evidence that the defendants wantonly and wilfully injured and killed the plaintiff's deceased husband on your verdict must be for the defendants."
Point 11. Prejudicial and reversible error committed by the court admitting the testimony of the witness Reed for the defendants. 20 Am. Jur. 661, Section 787, et seq.
Point 12. Prejudicial and reversible error committed by the court in failing to admit the corrected map and drawing of the witness Jordan. 20 Am. Jur. 607, Section 727, et seq; 20 Am. Jur. 616, Section 739.
John S. Beach, and Engle, Laub, Adams Forman, for appellees.
Appellant's decedent was not an invitee of appellee; particularly he was not an invitee on the structure which collapsed; affirmatively, he was a trespasser (or, at best a mere licensee) on the structure; for the purpose of this argument, even if he were an invitee (which is most emphatically denied), there was no breach of duty owed him by defendants, or any one of them. Illinois C.R. Co. v. Arnola, 78 Miss. 787, 29 So. 768, 84 Am St. Rep. 645; Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11, 53 So. 457; Yazoo M.V.R. Co. v. Cox, 132 Miss. 564, 97 So. 7; Robertson v. Yazoo M.V.R. Co., 152 Miss. 333, 118 So. 181; Yazoo M.V.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; 38 Am. Jur. 772, Sec. 109; Miss. P. L. Co. v. Sumner Gin Co., 156 Miss. 830, 127 So. 284; cited therein 45 C.J. 696; Roberts et al v. Miss. P. L. Co., 193 Miss. 627, 10 So.2d 542, cited therein: Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, 1 So.2d 242.
Point 1. In order to be constituted an invitee that person must be on other's premises for the benefit of said other person. Comeau v. Comeau, (Mass.) 189 N.E. 588, 92 A.L.R. 1002, Annotation (thereto), 92 A.L.R. 1005; Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982; Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633, cited therein: Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N.E. 128; Annotation, 104 A.L.R. 1182, cited therein: 20 R.C.L. 69, (38 Am. Jur. 759, Sec. 99); 38 Am. Jur. 759-761, Sec. 99.
Point 2. If deceased had been warned to keep off the structure and if his business with defendants, if any, did not require his presence thereon, then defendants were entitled to a verdict since he was either a trespasser or a licensee. 38 Am. Jur. 765, Sec. 104; 38 Am. Jur. 771, Sec. 109; Nichols v. Gulf Ship Island R. Co., 83 Miss. 126, 36 So. 192.
Point 3. Conceding that decedent may have been an invitee on the premises unless he was an invitee on the structure specifically with actual or implied permission and for defendants' benefit, then he was either a trespasser or a licensee; an invitation includes the term "permission" within its own terms. 38 Am. Jur. 761, Sec. 100.
Point 4. A defect which is not apparent to the naked eye is a latent defect; liability therefore must be based on superior knowledge; an instruction must be given its logical and reasonable interpretation; instructions are to be considered together and if considered in this manner all instructions are harmonized, there is no reversible error. 38 Am. Jur. 757, Sec. 97; Texas Co. v. Washington, B. A.E.R. Co., 127 A. 752, 40 A.L.R. 495, cited therein: Bannon v. Warfield, 42 Md. 22, Hanson v. Campbell, 20 Md. 223; Durrett v. Mississippian Ry. Co., 171 Miss. 899, 158 So. 776; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
Point 5. A plaintiff must prove his case by a preponderance of the evidence; plaintiff herein was of course not entitled to a peremptory instruction. Duncan v. Watson, 28 Miss. (6 Cushm.) 187; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; D.L. Fair Lbr. Co. v. Fed. Land Bk. of N.O., 158 Miss. 87, 128 So. 733; Smith v. Gulf, M. N.R. Co., 158 Miss. 188, 129 So. 599; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8, 8 So. 142; 20 Am. Jur. 1099, Sec. 1248; 3 Jones on Evidence 1682, Sec. 900.
Point 6. If the jury believed from the evidence that the individual defendant, Elmer Willard, was not a partner in the defendant partnership, he was entitled to a verdict. Marks et al v. Bush, 14 So. 89.
Point 7. There is no liability on the part of defendants in the case of a pure, or unavoidable, accident; an instruction to this effect is proper. Brown v. Mayor, etc. of Wilmington, 4 Boyce (Del.) 492, 90 A. 44, 38 Am. Jur. 648, Sec. 6; Neal v. Saunderson, 2 Smedes M. (Miss.) 572, 41 Am. Dec. 609; 38 Am. Jur. 645, Sec. 4; Gulf, M. N.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760.
Point 8. There may be no presumption of negligence on the part of defendants simply because an injury has been sustained, or death resulted therefrom, by one on premises of defendants. 38 Am. Jur. 976, Sec. 285; 38 Am. Jur. 983, Sec. 290; Huey v. Gahlenbeck, 121 Pa. 238, 15 A. 520, 6 Am. St. Rep. 790; Birmingham Union Ry. Co. v. Hale, 90 Ala. 8, 8 So. 142; Hoff v. Public Serv. R. Co., 91 N.J.L. 641, 103 A. 209, 15 A.L.R. 860; Kingsley v. Delaware, L. W.R. Co., 81 N.J.L. 536, 80 A. 327, 35 L.R.A. (N.S.) 338; Bartner v. Darst, 285 S.W. 449; Railway Express Agency, Inc. v. Little, 50 F.2d 59, 75 A.L.R. 963; Gray v. Baltimore Ohio R. Co., 24 F.2d 671, 59 A.L.R. 461; Texas Co. v. Washington, B. A.E.R. Co., 127 A. 752, 40 A.L.R. 495.
Point 9. Plaintiff's decedent may have been upon premises of defendants as invitee but still have been a trespasses or licensee upon the gravel washer. 38 Am. Jur. 761, Sec. 100.
Point 10. If plaintiff's decedent were a trespasser upon the gravel washer then plaintiff had to prove that defendants wantonly and wilfully injured and killed said decedent or verdict must be for defendants. Illinois C.R. Co. v. Arnola, 78 Miss. 787, 29 So. 768, 84 Am. St. Rep. 645; 38 Am. Jur. 772, 773, Sec. 109; Printy v. Reimbold, 202 N.W. 122, 41 A.L.R. 1423, Annotation (thereto), 41 A.L.R. 1430; Brigman v. Fiske-Carter Constr. Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773, Annotation (thereto), 49 A.L.R. 778.
Point 11. No error in permitting testimony on subject originally devedoped by plaintiff herself; such testimony was not inadmissible in any event.
Point 12. Map or drawing introduced by plaintiff but clearly shown to be inaccurate in many details and otherwise not a faithful representation was not admissible. 2 Jones on Evidence 1097, Sec. 581; 20 Am. Jur. 607, Sec. 727, 20 Am.Jur. 829, Sec. 982.
Suit for wrongful death of Joseph Don Campbell was brought by appellant, the widow and sole heir, against a partnership doing business as Natchez Construction Supply Company. The appeal is from a judgment for the defendants.
The fatal injuries were sustained by the deceased, who had climbed upon a structure erected by the defendants upon their lands for the purpose of collecting and washing gravel. The structure held three bins to contain gravel which was deposited therein by pumps. It was approximately thirty-four feet high. The bins were located atop piling to facilitate loading direct into trucks. While deceased was upon the structure, it collapsed. He was pinned beneath some of the debris and suffered injuries from which he died shortly thereafter.
The decisive legal and factual issue is whether deceased was at the time of his injury an invitee of the defendants or a mere licensee or trespasser. (Hn 1) It is elemental that if the status of deceased was that of an invitee, and his duties required or involved his presence upon the structure, the defendant owed to him the duty to use reasonable care to maintain the place in a reasonably safe condition. If, however, he was, either because he was an employee or, if such, his presence upon the structure was not required or anticipated, his status was that of a trespasser and the defendants owed to him no such duty, absent knowledge of his exposure to a known danger, except to refrain from wanton or wilful injury.
Had defendants' motion for a directed verdict been sustained, we would have been called upon to examine the conflicts in the testimony. In view of a submission of these issues to the jury and their verdict, we need inquire only whether the testimony was suffifficient to support the verdict.
Deceased owned, jointly with Jim Cotton, a gravel truck. On the morning of the injury, Floyd Willard, not a member of the partnership, came to the home of Jim Cotton requesting that he and deceased bring the truck to the gravel washer to haul gravel. Deceased was not present and lived elsewhere. Cotton brought the truck as requested. Later, deceased appeared at the scene. Gravel was not then being loaded. He sat down and removed his shoes, saying, according to some witnesses, that he "believed he would go up there and see how much gravel was in the bins", and by another witness: "he was about five feet from me — and pulled off his shoes and rolled up his pants, laid his cigarette down and got up, and I definitely warned him, said `don't get in the way' and he said he was not, he was going to play in the water a few minutes. Then he came back and picked up his cigarette, and I told him again, I said `You boys stay out of the way, don't go around the structure nor the barge.'" This witness did not see him mount the structure.
(Hn 2) The fact that there had been a general request and warning, both to deceased and others, to keep off the bins, seems sufficiently established as a jury issue. There appears no doubt that the presence of deceased upon the bins was not required, invited, or acquiesced in.
There is much testimony regarding the method of construction and the adequacy of the supporting timbers. (Hn 3) In the absence of an actual or imputed knowledge by the defendants of an apparent or latent defect presaging collapse, they owed him no duty except that owed a trespasser. The bins had been operated under similar conditions for about a week. The jurors were privileged to take into account the probability that deceased's own weight was a contributing factor.
(Hn 4) Sufficient stress is lacking upon principles which the lay mind too often ignores, and which even in judicial opinions are assumed rather than asserted. These are that injury of itself confers no legal right; that danger of itself is not negligence; and that negligence of itself is not liability. While negligence is the failure to use reasonable care, it remains an abstract concept until such negligence results proximately in injury to one to whom the obligation of due care is owed. These principles, as well as the issue as to the status, then and there, of the deceased, were submitted to the jury by proper instructions. The instructions on behalf of the plaintiff were generous, almost, but not quite to a fault. She accepted and presented the controlling principles embodied in the instructions requested by the defendants.
Lest the assignments directed to these instructions be deemed too summarily disposed of, we take occasion to say that the objections center about the requirement that (1) the deceased was there present at the actual or implied invitation of defendants; and (2) with the actual or implied invitation by defendants; and (3) for the defendants' benefit. It is urged that a probable or anticipated use of the premises would devolve a burden and duty upon defendants. Right or wrong, this latter element was embodied in plaintiff's instructions, and the jury rejected the privilege of applying it.
What we have said disposes of the case without need to review the denial of an instruction authorizing an award of punitive damages. Since no actual damages were awarded, the assignment is now without point. Nor need we examine the assignments directed to the nature and cause of the collapse. It is clear that there was no danger known to the defendants, and no wilful wrong. If there was no violation of a duty then and there owed to deceased, — and the jury so found — these matters become here irrelevant.
Affirmed.