Summary
In Nowell v. Harris, 219 Miss. 363, 68 So.2d 464, the facts as existed in this case clearly distinguish it from the case at bar.
Summary of this case from Harris v. Gulf Oil Corp.Opinion
No. 38851.
December 14, 1953.
1. Workmen's Compensation — common-law negligence action — not maintainable — coverage of all employees.
Where employer carried workmen's compensation insurance for his employees and reported accident to his insurance carrier, injured employee though not named in policy could not maintain action against employer based on common-law negligence for injuries sustained by employee in course of employment, as all employees were covered, and whether injured employee was named in policy was immaterial. Sec. 5, Chap. 354, Laws 1948.
2. Negligence — personal injuries — liability of operators of lumber yard — jury question.
In action against lumber yard operators for injuries sustained by truck driver when stack of lumber fell on him in defendant's lumber yard, evidence that truck driver while delivering lumber for employer to lumber yard of buyers was directed by lumber yard foreman to remove chain binder from nearby stack of lumber for use in unloading truck, that foreman knew the lumber was not stacked properly and would likely spread and fall when chain binder was removed but did not inform truck driver of such fact, and that lumber did fall upon and injure truck driver when he unfastened binder, was sufficient to take action for such injuries to jury on question of liability of lumber yard.
3. Negligence — deliveryman — business invitee.
Truck driver delivering lumber for employer to lumber yard of buyers was a business invitee of lumber yard operators, for in so doing he was acting to the advantage of himself, his employer and lumber yard operators.
4. Negligence — invitee — definition.
An invitee is a person who goes on premises of another in answer to express or implied invitation of owner or occupant on business of owner or occupant or for their mutual advantage.
5. Negligence — express invitee.
When truck driver, delivering lumber for his employer to lumber yard of buyers, was directed by lumber yard foreman to remove chain binder from stack of lumber to be used in unloading truck and undertook to do so, truck driver was an express invitee of lumber yard operators.
6. Negligence — express invitation.
An express invitation is one which is expressly extended as when owner in terms invites another to come upon his premises, or to make use of them, or to use something thereon.
7. Negligence — owner or occupant — duty towards invitee.
Where owner or occupant of land or building directly or impliedly invites others to enter for some purpose of interest or advantage to owner or occupant, he owes to such person a duty to use ordinary care to have premises in reasonably safe condition for use in a manner consistent with purpose of invitation, or at least not to lead invitee into a dangerous trap or expose him to unreasonable risk, and owner or occupant must give invitee adequately and timely notice and warning of latent or concealed perils which are known to him but not to invitee.
8. Negligence — operators of lumber yard — contributory negligence of invitee.
In such case, if lumber yard operators were otherwise liable, any contributory negligence of invitee in failing to detect danger incident to removal of chain binder would reduce amount of damages recoverable but would not necessarily bar recovery against lumber yard operators.
9. Master and servant — evidence — whether foreman directed business invitee — jury question.
In such action, conflicting evidence as to whether lumber yard foreman directed invitee to remove binder from stack of lumber presented a question of fact for jury.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Jones County; F.B. COLLINS, J.
Hester Walker, Laurel, for appellant.
I. The appellant, Lenious Nowell, was a business invitee while upon the premises of the Harris Lumber Company. Allen v. Yazoo M.V.R.R. Co., 111 Miss. 267, 71 So. 386, 388; Beeville Cotton Oil Co. v. Sells (Texas), 84 S.W.2d 575, 577; Carr v. Wallace Laundry Co., 31 Idaho 266, 170 P. 107; Gulf Rfg. Co. v. Moody, 172 Miss. 377, 160 So. 559; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 316, 26 A.L.R. 686; Stephens v. Walker, 217 Ala. 466, 117 So. 22; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Young's Admr. v. Farmers Dep. Bank, 267 Ky. 845, 103 S.W.2d 667, 669; Black's Law Dictionary (Third Ed.) p. 1007, word "invitee"; Prosser on Torts (Hornbook Series 1941 ed.), Sec. 79 p. 635, words "business visitor," and p. 642; Vol. 22, Words and Phrases (Perm. ed.) p. 568, et seq., Business Visitor, Customer.
II. Where the owner or occupant has a superior knowledge concerning the dangers of his premises, he is guilty of negligence in failing to render the premises reasonably safe for invitees or in failing to warn them of dangers thereon. Calvert v. Springfield Elec. R. Co., 231 Ill. 290, 83 N.E. 184; Dobbins v. Lookout Oil Rfg. Co., 133 Miss. 248, 97 So. 546; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532; Sanders Cotton Mill Co. v. Bryan, 181 Miss. 573, 179 So. 741; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Texas Co. v. Washington B.A. Elec. R. Co., 147 Md. 167, 127 A. 752; 39 Am. Jur., Sec. 96 p. 754; 39 C.J., Sec. 410-411, Master and Servant p. 283.
III. The Court is required to consider everything to have been proven which the evidence established directly or indirectly or by reasonable inference against the parties in whose favor the instruction was granted. Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Gulf, Mobile Northern R.R. Co. v. Weldy, 195 Miss. 345, 14 So.2d 340; Hooker v. Federal Land Bank of New Orleans, 192 Miss. 352, 5 So.2d 688; Keith v. Yazoo M.V.R.R. Co., 168 Miss. 519, 151 So. 916; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Loper v. Yazoo M.V.R.R. Co., 166 Miss. 79, 145 So. 743; Lowe v. Mobile O.R.R. Co., 149 Miss. 889, 116 So. 601; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; New Orleans N.E.R.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770, 771; New Orleans N.E.R.R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Striplin Cotton Co. v. Miller, 130 Miss. 430, 94 So. 277; Thomas v. Williamson, 185 Miss. 83, 187 So. 220, 221; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110.
IV. The defendants' negligence in failing to warn plaintiff of the danger involved in removing the binder chain was the direct and proximate cause of plaintiff's injury. Dobbins v. Lookout Oil Rfg. Co., supra; Gulf Rfg. Co. v. Ferrell, 165 Miss. 296, 147 So. 476; Illinois Central R.R. Co. v. Price, 72 Miss. 862, 18 So. 415; 38 Am. Jur., Negligence, Sec. 351; 18 R.C.L. 567, 572.
V. The Court erred in sustaining the motion of Travis Haynes, Jr., for a peremptory instruction. Sec. 6998-05, Code 1942.
Beard, Pack Ratcliff, Laurel; George D. Maxey, Ellisville, for appellees.
I. Appellant Lenious Nowell was an invitee while upon the premises of the Harris Lumber Company but that fact alone is not conclusive of liability. Prosser on Torts, p. 642.
II. The owner or occupant of land is liable to an invitee for failure to warn an invitee of latent or hidden defects which are known to the owner or occupant and not known to the invitee, where the invitee is injured as a result of such latent or hidden defect; but the owner or occupant is not liable to the invitee where, as in this case, there was no latent defect and no danger resulting in injury to the appellant about which appellant was not warned. Abbott v. Alabama Power Co., 214 Ala. 281, 107 So. 811; Boggs v. Jewett, 127 Miss. 308, 90 So. 13; Evans v. Buck Creek Cotton Mills, 231 Ala. 75, 163 So. 591; 38 Am. Jur., Sec. 205 p. 891.
III. The Court is required to take as established every material fact which the evidence proves or tends to prove in favor of appellant, either directly or by reasonable inference, but there is no fact or reasonable inference of negligence on the part of appellees Harris and Harris or their employees. Bacot v. Hazlehurst Lumber Co. (Miss.), 23 So. 481; Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; Dunlop v. Richardson, 63 Miss. 447; I.C.R.R. Co. v. Humphries, 170 Miss. 840, 155 So. 421; In re Campbell, 100 Vt. 395, 138 A. 725, 54 A.L.R. 1369; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; Manning v. State, 188 Miss. 393, 195 So. 319; Moore v. Chicago, St. L. N.O.R.R. Co., 59 Miss. 243; Newton v. Homochitto Lumber Co., 162 Miss. 20, 138 So. 564; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785; Thomas v. Williamson, 185 Miss. 83, 187 So. 220; 64 C.J., Sec. 433 p. 445.
IV. The appellees Harris and Harris, defendants below, were not negligent in failing to warn plaintiff of any danger involved in removing the binder chain from the stack of lumber, nor was any such alleged negligence a proximate cause of appellant's injury.
V. The Court did not err in sustaining the motion of appellees T.H. Harris and G.M. Harris for a directed verdict. Boggs v. Jewett, supra; Early v. Morrison Cafeteria Co. of Orlando (Fla.), 61 So.2d 477; Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187; Wilbourne v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Yazoo M.V.R.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469.
On January 1, 1951, Nowell endeavored to remove the chain binder from a stack of lumber. The lumber fell and injured him. He sued Travis Haynes, Jr., doing business as Haynes Lumber Company, and T.H. Harris and G.M. Harris, doing business as Harris Lumber Company. The trial court gave a peremptory instruction for all defendants, and Nowell appeals. The question for decision is whether the court committed reversible error in granting the peremptory instruction.
As to Haynes, the declaration charged him with negligence, causing the injury to plaintiff, in that (1) Haynes failed to furnish plaintiff, as a servant of Haynes, a safe place in which to work; (2) that Haynes failed to carry Workmen's Compensation insurance for benefit of plaintiff; (3) that Haynes knew, or should have known, that plaintiff was a minor, inexperienced about removing binders from lumber, and Haynes should have furnished him additional help in doing that work, and (4) that the accident happened on January first, which was a holiday, and that it occurred at the lumber yard of Harris, who did not have on that day sufficient help, and Haynes should have foreseen that fact.
(Hn 1) None of the asserted contentions are established but it is sufficient, for purposes of this opinion, to say that it is undisputed that Haynes was carrying Workmen's Compensation insurance for his employees, and he reported this accident to his insurance carrier. That precludes this action based upon alleged common law negligence. Appellant, by his pleadings and proof, has asserted throughout this action that the relation of master and servant existed between him and Haynes. Section 5, Chapter 354, General Laws of Mississippi 1948. The fact appellant was not named in the policy is immaterial. The policy covered the employees of Haynes and the terms of the Act were written into the policy. National Surety Corp. v. Kemp, ___ Miss. ___, 64 So.2d 723, (Suggestion of Error overruled 65 So.2d 840). The court did not err in directing a verdict for Haynes.
As to the liability of T.H. Harris and G.M. Harris, (whom we shall call Harris), the declaration alleges (a) that Nowell was a business invitee upon the premises of Harris and was injured by a hidden, undisclosed danger on such premises; (b) that the lumber was negligently stacked, which fell upon Nowell when he unloosed the binder pursuant to directions by Harris, and that Harris knew, and Nowell did not know, of such negligent stacking.
The proof shows that Haynes was operating a sawmill some three miles south of Laurel, Mississippi; that Harris was engaged in buying and selling lumber; that the lumber he purchased was delivered upon his lumber yards in Laurel; that he was buying lumber from Haynes, which Haynes was delivering to said yards; that Nowell was driving a truck for Haynes, hauling the lumber from the mill of Haynes and delivering it upon the lumber yards of Harris; that on the day of the injury Nowell appeared upon Harris' yards with a truckload of lumber. Ordinarily, the servants of Harris would place a binder about the load of lumber and lift the same from the truck and place it on a ramp. On this day Harris had only one employee on duty — Doggett, who was the foreman. When Nowell arrived at the yards with his truckload of lumber Doggett instructed him to go to a nearby stack of lumber, unloose the chain binder around it and place this chain binder about the load of lumber on the Haynes truck, the loaded lumber then to be lifted and properly placed upon, or about, the ramp, as might be directed. Nowell undertook to follow the instructions of Doggett. When he loosed the binder the stack of lumber fell upon him causing his injuries. Nowell said he was inexperienced in unloosening binders about stacks of lumber and that he did not notice anything indicating to him the lumber had not been properly stacked. On the other hand, Doggett testified that if the lumber had been properly stacked it would not have fallen. He also said that the binder chain was around the stack of lumber "To keep it from spreading or falling on somebody." He further said that if there is no binder chain around the stacks they are likely to spread and burst. He said he had had twelve to fifteen years experience in lumber yards, and that "If it (lumber) is stacked correctly it won't fall, if it's tiered off right," but that if it is not stacked properly it is dangerous when the binder chain is removed. He then testified that this particular stack was in a "slanted position." He was asked, "And how slanting was it?", and he replied, "I imagine it was leaning over something like 4 or 5 inches from the top — the load of lumber was dangerous — it looked dangerous." He said he did not inform Nowell the lumber was not properly stacked, nor that the stack was likely to spread and fall when the binder chain should be removed. Nowell alone was undertaking to remove the chain. Doggett was not present when the lumber fell.
(Hn 2) Now, under these circumstances, we think the question of liability, or non-liability, of Harris was for the jury.
(Hn 3) In hauling the lumber onto the yards Nowell was a business invitee of Harris. In so doing he was acting to the advantage of himself, his employer Haynes and his inviter Harris. (Hn 4) "An invitee is defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage." 65 C.J.S., pg. 508, Section 43(1). Whether to this point he was an implied or express invitee we need not decide. The effect is the same. (Hn 5) However, when Nowell went to the stack of lumber and undertook to remove the chain binder therefrom he was an express invitee of Harris, acting through Doggett, his foreman, if the jury accepts Nowell's testimony that Doggett did so direct him. (Hn 6) "An express invitation is one which is expressly extended, as when the owner in terms invites another to come upon his premises, or to make use of them, or to use something thereon." 65 C.J.S., page 509, Section 43(2). (Hn 7) "The rule is that an owner or occupant of lands or buildings, who directly or impliedly invites others to enter for some purpose of interest or advantage to him, owes to such person a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, or at least not to lead them into a dangerous trap or to expose them to an unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils which are known to him but not to them." 38 Am. Jur., page 755, Section 96; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; N.O. N.E.R. Co. v. Brooks, 175 Miss. 147, 165 So. 804.
(Hn 8) Doggett testified he knew the lumber was not stacked properly and that it would likely spread and fall when the binder was removed. He does not claim he informed Nowell of that fact. However, it is contended that Nowell has no right of action because he did not detect the danger himself. That fact would not necessarily bar recovery; it would be contributory negligence, reducing the amount of the damage, in case liability did exist. (Hn 9) We are mindful also that Doggett testified he did not direct Nowell to remove the binder. Nowell said Doggett did so direct him. That would be a question of fact for the jury to decide.
Affirmed as to Haynes; reversed and remanded as to Harris.
Kyle, Arrington, Ethridge and Lotterhos, JJ., concur.