recognizing that a jury question exists when reasonable minds might draw different conclusions about whether an individual was a trespasser or a licenseeSummary of this case from Henry v. Dollar General Store
Decided February 24, 1943.
Trespasser or licensee — Question for jury, when — Action for damages for personal injuries grounded on trespass — Supreme Court — All questions presented for determination in case on merits — But only particular order or judgment reviewed — Overruling motion to certify record, not affirmance of judgment.
1. In an action grounded on trespass, brought to recover damages for personal injuries, in which the uncontradicted evidence discloses circumstances from which different minds might reasonably draw different conclusions as to whether the one charged with trespass was a trespasser or licensee, that question becomes one for the jury under instructions from the court.
2. A case coming from a Court of Appeals to the Supreme Court on its merits is present for determination on all questions presented by the record, but only the particular order or judgment appealed from, or which is immediately involved upon a certification of the record, may properly be reviewed.
3. The overruling of a motion to require a Court of Appeals to certify its record in a case does not constitute an affirmance of the judgment of such court.
CERTIFIED by the Court of Appeals of Mahoning county.
This case has had a tortuous history. It has been thrice tried in the Court of Common Pleas, thrice reviewed by the Court of Appeals, and has been twice before the Supreme Court on motions for certification.
On the afternoon of May 29, 1933, the plaintiff, Mary Louise Keesecker, a mentally deficient child, but normal in appearance, then approximately five and one-half years old, was standing in an enclosed porch, also referred to as a sunroom or solarium, extending across the entire front of the frame dwelling occupied by her parents and herself in the city of Youngstown, Ohio. Her mother had left her for a short time to go into the house on an errand.
This porch, which was unheated, had numerous glass windows and, according to the positive testimony in the case, was furnished with several wicker chairs, a wicker settee, a floor covering and other articles. From the adjacent cement driveway several steps led up to a wood and glass door at one end of the porch. There was another door, a number of feet away, leading directly from the porch into the living room of the house, beside which was a push button type doorbell.
At about four o'clock on the afternoon in question, a delivery truck of the defendant, The G. M. McKelvey Company, a Youngstown department store, stopped in front of the Keesecker home, and the deliveryman, who was accompanying the driver, proceeded up the Keesecker drive with a package which he thought was for the Keeseckers but which was in fact for a neighboring family. The deliveryman entered through the porch door, went to the other door, pushed the button without result and then knocked, these activities consuming a period of two or three minutes. On the last trial of the action, he did not remember whether the porch door was closed or the porch furnished. Positive testimony was to the effect that the door was closed.
While the deliveryman was at the door leading into the living room, plaintiff fell out through the porch doorway, down the steps and onto the cement driveway, sustaining injuries the nature and extent of which were a matter of dispute in the litigation which followed. Plaintiff offered evidence tending to show that the fall destroyed the mental and physical improvement claimed to have been noted after a head operation, while the defendant's evidence tended to show that the injuries resulting from the fall were relatively slight and superficial.
In October of 1933, plaintiff began an action against the McKelvey company, claiming damages for personal injuries on account of the fall. The petition was grounded upon negligence and trespass. In submitting the case to the jury, the trial court eliminated the element of trespass and charged only on negligence. A verdict was returned for plaintiff in the sum of $13,000, and judgment entered thereon.
On appeal, the Court of Appeals reversed, holding there was no negligence as a matter of law, because it could not reasonably have been anticipated by the defendant's employee that an apparently normal child of the age of plaintiff would go to the doorway and fall down the steps. The cause was "remanded to the Court of Common Pleas, to submit the issue of trespass to a jury, and whether such trespass was a direct and proximate cause of the injury and damage, if any, of which plaintiff complains and if so the amount of that damage." A motion to certify, filed by the plaintiff, was overruled by this court.
Thereupon, plaintiff voluntarily amended her petition to conform with the judgment of the Court of Appeals, by removing negligence. The second trial of the cause on the sole issue of trespass resulted in a verdict and judgment for the defendant. The plaintiff then appealed to the Court of Appeals, and the matter was heard by one judge of the First Appellate District and two judges of the Fifth Appellate District, sitting in the Seventh Appellate District by designation. That court took the position that the trial court "should have instructed the jury as a matter of law that the employee of the defendant, when he opened the door of the sunroom and proceeded across such room was a trespasser," and "if the jury's verdict was predicated upon a conclusion that the injuries to plaintiff were not proximately caused by the trespass of the defendant's employee, then we consider their verdict manifestly against the weight of the evidence." The judgment below was reversed and the cause remanded for further proceedings. Keesecker, an Infant, v. G. M. McKelvey Co., 64 Ohio App. 29, 27 N.E.2d 787. A motion for certification prosecuted by defendant was overruled by this court.
A third trial was then had in the Court of Common Pleas of Mahoning county in conformity with the above views of the Court of Appeals, and the plaintiff secured a verdict and judgment for $17,500. Defendant's appeal to the Court of Appeals was considered by the judges of the Ninth Appellate District. Such court "being unanimously of the opinion that, under this record, the defendant's agent, as a matter of law, was not a trespasser [but an implied licensee], and the action being predicated solely upon a claim of trespass, it follows that no right of recovery of damages for trespass exists in the plaintiff.
"Accordingly, the judgment for plaintiff is reversed; and this court, now proceeding to render the judgment which the trial court should have entered, orders that final judgment for defendant be entered * * *."
The judges of the Court of Appeals of the Ninth Appellate District finding such judgment in conflict with the judgment rendered by the Court of Appeals which heard the case the second time, certified the record to the Supreme Court for review and final determination.
Mr. Clyde W. Osborne, for appellant.
Messrs. Manchester, Ford, Bennett Powers and Mr. M.S. Wilkinson, for appellee.
Since this cause is now here on its merits, the first and most important question engaging our attention is whether the defendant's employee was a licensee or trespasser as a matter of law, or whether his status is a mixed question of law and fact and should be left to the determination of a jury under instructions from the court.
A "trespasser" may be defined as one who unauthorizedly goes upon the private premises of another without invitation or inducement, express or implied, but purely for his own purposes or convenience; and where no mutuality of interest exists between him and the owner or occupant. Heller v. New York, N.H. H. Rd. Co. (C.C.A. 2), 265 F., 192, 194, 17 A. L. R., 823.
According to several holdings, a "licensee" is one who stands in no contractual relationship to the owner or occupier of premises, but is permitted or tolerated thereon, expressly, impliedly or inferentially, merely for his own interest, convenience or pleasure or for that of a third person. Foley v. H. F. Farnham Co., 135 Me. 29, 188 A. 708; Schock v. Ringling Bros. and Barnum Bailey Combined Shows, 5 Wn.2d 599, 105 P.2d 838.
Whether one is a trespasser or a licensee is often difficult to determine and frequently turns upon the peculiar circumstances connected with the particular entry.
In the pending litigation there is no dispute that the porch was enclosed. The evidence tends strongly to show that the porch contained furniture and that the door leading into it was shut. Moreover, the advent of any deliveryman from the McKelvey store was not anticipated by the Keeseckers during the afternoon in controversy.
On the other hand, in this day and age it is a matter of general knowledge that deliverymen, tradespeople and others having business or prospective business with the occupants of a private dwelling, or being in quest of information, commonly call at the front door. In the present case the porch door was unlocked, there was no warning to stay out, a doorbell was located beside the inside door, and the deliveryman was of the honest belief that the package he carried was to be left at the Keesecker residence.
Therefore, was the deliveryman guilty of an unauthorized or unlawful intrusion onto the porch, making him a trespasser, or was he confronted by appearances which would justify him in inferring that the owner or occupant had given tacit or implied assent to persons in a similar position to his to enter upon the porch and go to the other door for ordinary transactions, thus placing them in the category of licensees?
The rule is well established in this state that when the uncontradicted evidence discloses circumstances from which different minds may reasonably draw different conclusions, one favorable and the other unfavorable to the claim of a party, the evidence should be submitted to the jury under pertinent instructions. 39 Ohio Jurisprudence, 807, Section 186; Nelson Business College Co. v. Lloyd, 60 Ohio St. 448,
54 N.E. 471, 46 L.R.A., 314, 71 Am. St. Rep., 729, 6 Am. Neg. Rep., 369; Hickman v. Ohio State Life Ins. Co., 92 Ohio St. 87, 110 N.E. 542; Vignola v. New York Central Rd. Co., 102 Ohio St. 194, 131 N.E. 357; Pence v. Kettering, 128 Ohio St. 52, 190 N.E. 216.
It seems to us that in a situation of the kind before us the question of trespass or license is one for the triers of the facts. 63 Corpus Juris, 1029, Section 218; Gratz v. McKee (C. C. A. 8), 9 F.2d 593, 596 ( Certiorari denied, 270 U.S. 664, 70 L.Ed., 788, 46 S.Ct., 472); Katsonas v. W. M. Sutherland Bldg. Contracting Co., 104 Conn. 54, 132 A. 553; Connell, Admr., v. Keokuk Electric Ry. Power Co., 131 Iowa 622, 109 N.W. 177; Everett v. Salsbury, 214 N.C. 819, 198 S.E. 663; Childers v. Judson Mills Store Co., 189 S.C. 224, 200 S.E. 770.
If a jury should find the defendant's employee was a licensee, its verdict would be for the defendant under the pleadings; if it should find him a trespasser and that his trespass was a proximate cause of the plaintiff's injuries, then the plaintiff should prevail and would be entitled to recover such damages as were suffered as a direct result of the fall.
Plaintiff insists that she had a right to go to the jury on the issue of negligence, as originally pleaded, and that this court should now go back and affirm the judgment of the Court of Common Pleas as rendered on the first trial of the action. In view of what has transpired, it may have been that the court ought to have admitted the case on the initial motion to certify; but it did not, and the only judgment now before us for consideration is the one rendered by the Court of Appeals on its last review of the cause, based on the record before it.
While a case in this court on its merits is here for determination on all questions presented by the record ( Chicago Ornamental Iron Co. v. Rook, Admr., 93 Ohio St. 152, 112 N.E. 589; Pettibone v. McKinnon, 125 Ohio St. 605, 183 N.E. 786), only the particular order of judgment appealed from may properly be reviewed. Goode v. Wiggins, 12 Ohio St. 341, 343; 2 Ohio Jurisprudence, 611, Section 569.
When, after the first judgment of the Court of Appeals, plaintiff abandoned negligence as a ground for recovery by amending her petition and elected to rely upon trespass, negligence was out of the case. The fact that this court overruled the motions to certify did not necessarily imply that it approved the judgments of the Court of Appeals. It should be understood that the overruling of a motion to certify the record does not constitute an affirmance of the judgment of the Court of Appeals, but is indicative that the court does not consider the controversy one of public or great general interest within the meaning of Sections 2 and 6, Article IV of the Constitution of Ohio.
From what has been said, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings.
WEYGANDT, C.J., MATTHIAS, HART and TURNER, JJ., concur.
BELL, J., concurs in paragraph three of the syllabus and in the judgment, but dissents from paragraphs one and two of the syllabus.
WILLIAMS, J., concurs in paragraphs two and three of the syllabus, but dissents from the judgment upon the ground that the defendant committed a trespass as a matter of law.
I concur in the judgment in this case, but since there has been such a contrariety of opinion upon the part of the courts as to the basis of liability or non-liability for judgments heretofore rendered herein, I am constrained to give my reasons for concurrence in the present judgment of this court.
At common law trespass originally had to do with a forcible and wrongful invasion of the right of possession of real estate. Later the action of trespass was available to recover compensation for damage directly done by violence, whether such damage is in the form of injury to persons or is done to land, or consists of the asportation of chattels. The force element was always conspicuous and made trespass a semi-criminal wrong. It was not applied to consequential damages which flowed from the invasion of another's possessory rights in real estate which was not accompanied with force. For this latter type of injury the common law invented a writ known as "trespass on the case" which was applied to all tortious acts other than trespass in which force was a necessary element. The classical illustration of this distinction was made by Fortesque, J., in the case of Reynolds v. Clarke (1725), 1 Strange, 634, 93 Eng. Rep. R., 747, when he said:
"If a man throws a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case, because it is only prejudicial in consequence." See, also, Scott, an Infant, v. Shepherd, an Infant (1722), 2 Black. W., 892, 3 Wils C. Pl., 403, 96 Eng. Rep. R., 525 (the famous squib case.)
For intentional injury done by the direct application of force a person is absolutely liable; and for injury done by the direct application of force under such circumstances that the law can ascribe to the actor an intention to do harm, he is also absolutely liable, and this is true regardless of whether he is or is not a trespasser at the time of the wrongful act.
The extent of liability of a person for consequential injuries which flow directly from his acts while on the premises of another depends upon his status in relation to such premises at the time of injury. One who becomes an intentional trespasser on the land of another even though his entry is due to negligence or ignorance on his part is guilty of an unprivileged intrusion. Because of his wrongful entry, he is liable notwithstanding the exercise of due care while thereon, not only for damages to the premises (1 Restatement of Torts, 359, Section 158; Reynolds v. Clarke, supra; Wyant v. Crouse, 127 Mich. 158, 86 N.W. 527, 53 L.R.A., 626; Newsom v. Meyer, Jr., 102 Conn. 93, 128 A. 699; Western Union Telegraph Co. v. Smith, 64 Ohio St. 106, 59 N.E. 890; City of Barberton v. Miksch, 128 Ohio St. 169, 190 N.E. 387); but for consequential bodily injury to the occupant of the premises or to a member of his family which are the proximate result of his acts. The latter portion of this rule is stated in 2 Restatement of Torts, 1016, Section 380, as follows:
"A trespasser on land is subject to liability for bodily harm caused to the possessor thereof or to members of his household by any act done, activity carried on or condition created by the trespasser while upon the land irrespective of whether the trespasser's conduct is such as would subject him to liability were he not a trespasser."
In further explanation, comment c on this section says:
"It is * * * not necessary to the liability of the trespasser that his conduct should be intentionally wrongful or recklessly or negligently disregardful of the interests of the possessor or a member of his household or an activity which, like blasting, is so hazardous that it must be carried on at the risk of answering for harm however caused by it. Thus, one who trespasses upon the land of another incurs the risk of becoming liable for any bodily harm which is caused to the possessor of the land or to members of his household by any conduct of the trespasser during the continuance of his trespass no matter how otherwise innocent such conduct may be."
By inaccurate nomenclature this type of wrong and the action by which it is redressed is still denominated trespass under our modern law. It is recognized and illustrated in the following cases: Watson v. Dilts, 116 Iowa 249, 89 N.W. 1068, 57 L.R.A., 559; Mitchell v. Mitchell, 54 Minn. 301, 55 N.W. 1134; Lesch v. Great Northern Ry. Co., 97 Minn. 503, 106 N.W. 955, 7 L.R.A. (N.S.), 93; Engle v. Simmons, 148 Ala. 92, 41 So. 1023; Continental Casualty Co. v. Garrett, 173 Miss. 676, 161 So. 753; Matheson v. American Telephone Telegraph Co., 137 S.C. 227, 135 S.E. 306; and Brabazon v. Joannes Bros. Co., 231 Wis. 426, 286 N.W. 21.
The case last cited is a typical example of the rule just stated. A salesman for the defendants called at the store of Brabazon, one of the plaintiffs, to introduce a new kind of fly spray. While such salesman was giving a demonstration in the rear of the store, the wife of the store owner, the other plaintiff, who was clerking in the front of the store, became aware of the odor of the fly spray and in attempting to stop the demonstration, she inhaled some of the vapor which contained a chemical to which she was allergic, and as a result she became ill. There was some contention as to whether the defendant's servant had permission to demonstrate the fly spray at the time when and in the part of the store where he made the demonstration. There was a verdict and judgment for the plaintiff but the Supreme Court reversed the judgment because of an erroneous charge of the trial court to the effect that the defendant must show permission to make the demonstration, whereas the reviewing court held that there was an implied license to make the demonstration unless the store owner revoked the privilege before the demonstration was actually made. The court held that if the jury, on retrial, should find that the license had been revoked before the demonstration was made, then the making of the demonstration was an abuse of the privilege and by reason of the abuse the plaintiffs would be entitled to recover for damages sustained as a result thereof.
But liability may attach to a licensee for negligent conduct while in the enjoyment of his license which results in injury to another upon the premises. 1 Restatement of Torts, 405, Section 167, comment g. See, also, Keithley v. Hettinger, 133 Minn. 36, 157 N.W. 897; Cushing v. Adams, 35 Mass. (18 Pick.), 110, 114.
In my judgment a claim of liability of the defendant in this case might be predicated on one of two possible theories — first, that the bodily injury of the plaintiff was the result of the acts of defendant's servant while a trespasser; or second, that even though defendant's servant was a licensee, he acted negligently and that such negligence proximately caused the injury. In this connection I am expressing no opinion as to whether negligence, as a basis of liability in this case, is still available, or whether it has been waived by the pleadings or has been foreclosed by the law of the case. See New York Life Ins. Co. v. Hosbrook, 130 Ohio St. 101, 196 N.E. 888.
The facts in this case as to the status of the defendant's servant in relation to the home of plaintiff's parents at the time of the accident, that is whether he was a trespasser or licensee, are practically undisputed. Generally where ultimate facts are undisputed a question of law is presented for the court. Schickling, an infant, v. Post Publishing Co., 115 Ohio St. 589, 155 N.E. 143. However, where an ultimate fact must be determined from inferences to be drawn from other facts and where reasonable minds might reach different conclusions from such inferences as to the ultimate fact, it is proper to submit the question of the determination of the ultimate fact to the jury.
Such a situation is here presented and this is forcibly demonstrated by the diversity of holdings and judgments of the various courts which heard this case, the details of which are fully set out in the statement of facts. Under such circumstances, the question of the status of defendant's servant is one for a jury. I concur in the reversal of the judgment and a remand for new trial.