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McDonald v. Wilmut Gas Oil Co.

Supreme Court of Mississippi, Division B
Oct 18, 1937
180 Miss. 350 (Miss. 1937)


No. 32837.

October 18, 1937.


A tenant takes premises as he finds them, and, in absence of concealment or fraud as to some defect or danger known to landlord and unknown to tenant, rule of caveat emptor applies.


Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipe line ditch of company which had right of way, and owner of ox knew of condition of ditch and made no claim of concealment or fraud, he could not recover from company for death of ox, even if he were a tenant on premises and first tenant were company's agent in making grant.


The liability of a licensor who has permitted gratuitous licensee to enter on land for purposes of pasturage is not based on duty to maintain inclosed acreage in safe condition, but on duty to disclose to licensee risks which he will encounter if he accepts permission granted, and, where licensee has full knowledge of danger and accepts license, he assumes the risks.


Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipe line ditch of company which had right of way, and owner of ox knew of condition of ditch before he pastured ox on premises, he could not recover from company for death of ox, even if he were a gratuitous licensee and first tenant were company's agent in making grant.


As respects right to recover for dangerous condition of realty, the rights of a licensee for a valuable consideration can be no higher than those of a tenant, nor lower than those of a gratuitous licensee.


Where owner of ox obtained oral grant from tenant of right to pasture ox on swampy land, ox was drowned in uncovered pipe line ditch of company which had right of way, and owner of ox knew of condition of ditch before he pastured ox on premises, his assumption of risk barred recovery from company for death of ox, even if he were licensee for consideration, and first tenant were agent of company in making grant.


The common-law doctrine of assumption of risk is in full force in Mississippi, except as between master and servant (Code 1936, section 513).

APPEAL from the circuit court of Covington county. HON. EDGAR M. LANE, Judge.

Currie Currie, of Hattiesburg, and W.W. Dent, of Collins, for appellant.

It is contended by the appellant that the appellee knew, or should have known, of the condition of its pipe line and right of way, and that cattle were grazing within close proximity to the right of way and pipe line and were likely, by the vegetation there, to be lured into the excavation on its right of way and there bog down and drown; that it was a question for the jury to determine whether or not the appellee was negligent in creating and maintaining this veritable death trap within the cow pasture, without it being covered and in such close proximity thereto.

Chadwick v. Bush, 163 So. 823, 174 Miss. 75; Vicksburg Jackson R.R. Co. v. Patton, 31 Miss. 155; Auxford Brown Ore Co. v. Hudson, 77 So. 243; L. N.R.R. Co. v. Harrison, 80 So. 683; St. Louis, Iron Mt. So. R.R. Co. v. Newman, 127 S.W. 735, 28 L.R.A. (N.S.) 83; 1 R.C.L. 1133, par. 75; Restatement of the Law of Torts, page 780, par. 290 (f).

On the trial of this cause the appellant admitted that he knew of the condition of the pipe line right of way in the pasture when he turned his ox in it to graze, and that the hole or trench was there, but this in no way bars his right to recover, and the court could not say as a matter of law that the appellant's act in this regard was the sole proximate cause of the loss of the ox.

Sections 511 and 512, Code of 1930.

The deed to the right of way under which the appellee maintains this pipe line provides that the pipe shall be buried "plow depth." This provision was placed in the right of way deed for the benefit of the owners of the land, or tenants, or occupants, or lessees, or any persons who exercised control over the land with the permission of either occupant or owner, and under this provision it was intended that the occupants, owners, or lessees, should carry on their farm work unmolested and uninterrupted by this pipe line throughout South Mississippi, as this court judicially knows. The breach of this condition by the appellee in this case might of itself be indicative of some evidence of negligence.

We respectfully submit that the maintaining of this boggy trench covered with undergrowth, which this court knows lures and attracts cattle, is sufficient of itself to require a reversal of this case. Property owners and owners of right of way should not be permitted to maintain on their property boggy ditches or trenches covered with thick undergrowth attractive to cattle, in which cattle might fall and become injured or drowned, without being responsible to the owners of the injured cattle in damages, and whether a person maintaining such a condition is negligent and should be required to pay the owner of the injured cattle is strictly within the province of the jury.

John R. Tally, of Hattiesburg, for appellee.

There being no proof to establish that appellant was a licensee or invitee, so far as the appellee is concerned, then appellant and his ox must be classed as trespassers upon the property of appellee and, therefore, appellee owed appellant no duty except not to willfully or wantonly injure or destroy him or his property.

45 C.J., page 798, sec. 203-4, page 742, sec. 132, and page 745, sec. 134; I.C.R.R. Co. v. Arnola, 78 Miss. 787; Woodland Gin Co. v. Moore, 103 Miss. 447; Cato v. Crystal Ice Co., 109 Miss. 590; McGill v. Compton, 66 Ill. 327; Reardon v. Thompson, 149 Mass. 267, 21 N.E. 399.

A licensee enters land at his own risk and cannot recover for injuries caused by existing defects in the premises.

Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150, 15 L.R.A. 459; Eisenberg v. Mo. Pac. R.R. Co., 33 Mo. App. 85.

It is well settled that the mere permission to pass over lands which are dangerous, either naturally or by reason of the use which is made of them, imposes no duty or obligation upon the owner of such lands, except to refrain from acts which are willfully injurious or knowingly in the nature of a trap, and except, also, where there are hidden dangers, the concealment of which would be in the nature of a fraud. He who enjoys the permission or passive license is only relieved from the responsibility of being a trespasser, and must assume all ordinary risk attached to the nature of the place or the business carried on there.

Vandenberg v. Hendry, 34 N.J.L. 467; Sterger v. Vansiclen, 132 N.Y. 499, 30 N.E. 987, 28 A.S.R. 594, 16 L.R.A. 640; Kelley v. City of Columbus, 61 Ohio St. 263; Pierce v. Whitcomb, 48 Vt. 127, 21 A.S.R. 120; Peake v. Buell, 90 Wisc. 508.

Ordinary care of a reasonably prudent man does not demand that persons should prevision unusual, improbable, or extraordinary occurrence.

I.C.R.R. Co. v. Bloodworth, 145 So. 333, 166 Miss. 602.

We therefore insist that, under the facts as disclosed by the record in this case, the appellant would not be entitled to recover on a simple charge of negligence or of gross negligence, as the undisputed testimony shows that whatever ditch or excavation that was made in said swamp was not made by this defendant, and that if it had been made by this defendant it was not a concealed defect nor in anywise a trap, but, on the contrary, it was open and obvious to appellant; and appellant testifies that he knew all about it, and knowing all the facts, having repeatedly seen the situation and condition, he voluntarily sought and procured, according to his own testimony, permission to graze his ox in and around the premises, and, in doing so, he thereby assumed the risk and cannot now be heard to complain, even as against the man Wiley Graham, from whom he obtained permission to put his ox in there, much less this defendant, against whom it has never been proven that any of its servants, agents, or employees had anything to do with it or even knew that plaintiff was pasturing his ox in and around the alleged dangerous swamp.

The undisputed evidence in the case at bar shows that the ditch was only two or three feet wide and two to four feet deep, was open and obvious to everybody, and that the plaintiff, knowing all the facts for years before his alleged injury occurred, of his own free will and accord sought and procured pasturage right and placed his ox to pasture where, he now says, it was exceedingly dangerous for it to be, and lost his ox by result of his own bad judgment. He cannot profit by his own wrong.

John R. Tally, of Hattiesburg, and Green, Green Jackson, of Jackson, for appellee.

Appellee, owner of the land, owed no duty as to the ox other than not to wilfully injure, no affirmative duty to keep the premises safe and in condition.

Knight v. Abert, 6 Pa. St. 472, 47 Am. Dec. 478; Thompson v. R.R. Co., 105 Miss. 636, 63 So. 185, 47 L.R.A. (N.S.) 1101; Louisville, etc., R. Co. v. Phillips, 12 So. 825; Gandy v: Public Service Corp. of Miss., 163 Miss. 187, 140 So. 687; Gully v. Wilmut Gas Oil Co., 174 Miss. 794, 165 So. 620; Ingram-Day Lbr. Co. v. Harvey, 98 Miss. 11, 53 So. 347; Alabama Great S. Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 732; I.C.R. Co. v. Ash, 128 Miss. 410, 91 So. 31; New Orleans, etc., R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; I.C.R. Co. v. Mann, 137 Miss. 819, 102 So. 753; Byars v. Davis, 131 Miss. 1, 94 So. 853; Hubbard v. Southern Ry. Co., 120 Miss. 834, 83 So. 247; I.C.R. Co. v. Arnola, 78 Miss. 787; 2 Am. Juris., page 782, sec. 122; 33 A.L.R. 448; Blyth v. Topham (1607), Cro. Jac. 158, 79 Eng. Reprint 139; Strong v. Brown, 26 Idaho 1, 52 L.R.A. (N.S.) 140, 140 P. 773, Ann. Cas. 1916E 482; Ann. Cas. 1917A 292, note; Gould v. Reed, 203 P. 284; Garner v. Town of East Point, 67 S.E. 847; Snack v. New York Cent. R. Co., 223 App. Div. 192, 227 N.Y.S. 739; Texas N.O.R. Co. v. Kaderli, 33 S.W.2d 832; Muir v. Thixton, Millett Co., 119 Ky. 759; Adams Bros. v. Clark, 224 S.W. 1050; 33 A.L.R. 456, note; 3 C.J.S. 1329; Railroad Co. v. Metcalf, 84 Miss. 242; Western U. Tel. Co. v. L. N.R. Co., 250 Fed. 199; Auxford Brown Ore Co. v. Hudson, 77 So. 243; Louisville, etc., R. Co. v. Phillips, 12 So. 825; United Zinc Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615, 36 A.L.R. 28.

There is a distinct tendency in the decisions of late years to restrict rather than extend the doctrine commonly known as the turntable or attractive nuisance doctrine.

Bonhomie H.S.R. Co. v. Hinton, 155 Miss. 173, 124 So. 271; Thompson v. Railroad Co., 105 Miss. 636, 63 So. 185, 47 L.R.A. (N.S.) 1101; Carr v. Oregon-Washington, etc., Co., 123 Or. 259, 261 P. 899, 60 A.L.R. 1434; Cox v. Alabama Water Co., 216 Ala. 35, 112 So. 352, 53 A.L.R. 1336; Charvoz v. Salt Lake City, 131 P. 901, 45 L.R.A. (N.S.) 652.

The appellee did naught save purchase at a trustee's sale a completed pipe line which constituted a fixture and did no more, and herein there is no evidence that its act in and about the maintenance was other than proper.

1 R.C.L., page 1132, sec. 74; Restatement of the Law of Torts, page 930, sec. 341.

The risk of injury was assumed by plaintiff.

Restatement of the Law of Torts, sections 341, 342; 18 R.C.L. 548; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Holman v. Bennett, 44 Miss. 322; McInnis v. State, 52 So. 634; Potter v. Fidelity, etc., Co., 101 Miss. 823, 58 So. 713; Alabama V. Ry. v. McGee, 117 Miss. 370, 78 So. 296; Bahan v. Meridian Lt. Ry. Co., 121 Miss. 267, 83 So. 467; Krebs v. Pascagoula, etc., Co., 117 Miss. 771, 78 So. 753; Barron Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Wausau Southern Lbr. Co. v. Cooley, 130 Miss. 333, 94 So. 228.

Herein the plaintiff admits full knowledge, sought employment in the construction and appreciated in the fullest the perils incident, while there is no proof whatever that appellee knew aught, or did aught as to the alleged danger, and therefore both affirmatively and negatively plaintiff is herein barred.

Defendant's pipe line was not the proximate cause of the death of the ox.

Broom's Legal Maxims, 216; Vicksburg Jackson R. Co. v. Patton, 31 Miss. 193; 45 C.J. 901.

Argued orally by W.W. Dent, for appellant, and by John R. Tally and Garner Green, for appellee.

On July 31, 1931, the Public Service Corporation of Mississippi obtained, by deed, from the then owner of the land here in question, a right of way 16 feet in width entirely across said land, the right of way being for a gas pipe line, with a stipulation in the deed that the purchaser of the right of way "shall bury the pipe lines below plow depth so that it will not interfere with the cultivation of the soil," and with the further stipulation that "the grantor reserves the use and enjoyment of said premises except for the purposes herein conveyed to purchaser."

Soon thereafter, in the same year, the Service Corporation laid its pipe line across the property; but some short distance beyond the cultivatable land the pipe line entered a low morass, wherein the ground was so soft and boggy as to be incapable of bearing the weight of a person or animal on foot. In this swampy area the Service Corporation did not cover the ditch in which the pipe was laid, but left it open, the ditch being deep in water both summer and winter, but particularly in winter. The pipe line ditch in this morass or swamp was in the condition described when appellees subsequently, that is to say, in 1934, acquired all the property and property rights of the Service Corporation, and remained in that condition until the day of the injury hereinafter to be mentioned.

Previously to the months of January and February, 1936, appellant had obtained from the tenant, then in full possession of said land as the lessee of the owner, an oral grant of the right or permission to pasture his ox within the inclosure surrounding the land, this grant or permission being in consideration of the aid rendered by appellant in constructing and repairing the fence. Others in the neighborhood had so aided, had obtained like permission to pasture their cattle within the inclosure, and had availed of the permission, there being sometimes as many as seventy-five head of such cattle.

During the month of January or February, 1936, appellant's ox wandered along this uncovered pipe line ditch in the swamp, and fell into it and was drowned. Appellant testified with frankness and candor that he knew of the exact condition of the pipe line ditch in the swamp; that he had seen it when the pipe line was there laid; and had been fully aware at all times since of the open pipe line ditch at and along the place of the injury.

From the foregoing statement of the material facts, it is at once apparent that we have here no case of a hidden danger or of an obscure trap or snare not easily observable, and not observed, by a person who has no reason to suspect such a danger; no case which concerns premises upon which dangerous machinery is in operation; no case of a commercial building, or any like case, as to which see, generally, Daniel v. Jackson Infirmary, 173 Miss. 832, 838, 163 So. 447. Nor have we a case which involves the rights of an invitee, for the facts here do not present that precise subject. We deal solely with the broad acres of a remote pasture and with a danger which was neither hidden nor obscure, but, on the contrary, was actually known to the complaining party.

We will assume for the purposes of this case that the tenant in full possession of the land was empowered to sublet it, or any part thereof, or to grant the use of it at seasonable periods for pasturage, including the pipe line right of way, and this without the consent of the owner of the right of way. We will further assume, none of said assumptions, however, to be treated as decision, that the tenant in full possession may be regarded as the agent of appellee in granting said use to said appellant as concerns the area within the right of way — all of these assumptions placing the case in the most favorable light in which it could be viewed in behalf of appellant. From the facts directly proved, together with the stated assumptions, it follows that we must consider the case as involving only three possible legal relationships: (a) Whether appellant was a subtenant; (b) whether he was a gratuitous licensee; and (c) whether he was a licensee for a valuable consideration — together with the rights or want of rights which follow from those relationships, when the party injured has had full knowledge of the danger about which he complains.

a. It is not contended that appellant occupied the relationship of tenant upon the premises in question, but, if so, the rule is that a tenant takes the premises whether of houses or land as he finds them, and that, in the absence of concealment or fraud on the part of the lessor as to some defect or danger in the premises known to him and unknown to the tenant, the rule of caveat emptor applies and the tenant takes the premises in whatever condition they may be when so taken. Rich v. Swalm, 161 Miss. 505, 516, 137 So. 325.

b. If the appellant was a gratuitous licensee, the liability of the licensor who has permitted the appellant to enter upon the land for the purposes of pasturage is not based upon a duty to maintain the inclosed acreage in a safe condition, but is based upon the duty of the licensor to disclose to the licensee the risk which he will encounter if he accept the permission granted. Compare paragraph (d), page 935, section 342, Restatement of the Law of Torts. Hence, if the licensee already know of the condition of the land and of the particular danger of which he complains, he has had all that he is entitled to expect, which is to say, an opportunity for an intelligent choice as to whether the advantage to be gained by coming on the land is sufficient to justify him in incurring the risk incident thereto. Compare also Id., par. (a), page 930, section 341, and 45 C.J., pp. 798 and 801, section 203; 20 R.C.L., pp. 57-61; from which it follows that, when the licensee has full knowledge of the danger, as is the case here, and nevertheless accepts the license, he assumes the risk and can blame only himself.

c. If the appellant may be designated as a licensee for a valuable consideration, the most that could be said of his rights would be that his position was somewhere between that of a tenant and that of a gratuitous licensee; but this still would not aid him, for his rights could not be higher than that of a tenant nor lower than that of a gratuitous licensee, with the result that, since he had actual knowledge of the risk and dangers of which he complains, yet chose to take the risk, he cannot maintain an action for an injury resulting from such a danger. The common-law doctrine of assumption of risk is in full force in this state, except as between master and servant. Section 513, Code 1930.

We cannot feel otherwise than a natural sympathy with this humble old negro in the loss of his property, but we are without legitimate authority to bend the law of the land to cover his misfortune. The trial judge was correct in granting the peremptory charge.


Summaries of

McDonald v. Wilmut Gas Oil Co.

Supreme Court of Mississippi, Division B
Oct 18, 1937
180 Miss. 350 (Miss. 1937)
Case details for

McDonald v. Wilmut Gas Oil Co.

Case Details


Court:Supreme Court of Mississippi, Division B

Date published: Oct 18, 1937


180 Miss. 350 (Miss. 1937)
176 So. 395

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