Opinion
No. 31052.
February 12, 1934. Suggestion of Error Overruled April 23, 1934.
1. NEGLIGENCE.
Friend of employees and officers of automobile sales and repair company entering garage to warm himself by stove was mere "licensee," to whom employees, prior to discovering he was in peril, owed no duty except not to willfully or wantonly injure him.
2. EVIDENCE.
It is common knowledge that gasoline is highly explosive when brought into contact with fire and heat.
3. NEGLIGENCE.
Service manager who saw mechanic place blowtorch containing gasoline on hot stove close to bystander, who was in garage with manager's knowledge and consent, was charged with knowledge of imminent danger, and was wantonly negligent as matter of law in failing to give warning.
4. APPEAL AND ERROR.
Where plaintiffs in death action were entitled to peremptory instruction, alleged errors in instructions granted to plaintiffs were immaterial.
5. DEATH.
In action by children for death of father, evidence touching deceased's expectancy, earnings, and gifts to children was admissible, where deceased's age health, earnings, and contribution each month to children's support were shown.
6. TRIAL.
In action by children for death of father, trial court's failure, of its own motion, to rebuke plaintiff's display of emotion during argument to jury, held not error, where it appeared doubtful from record whether such acts were observed by jury.
7. DEATH.
Five thousand dollars for death of father sixty-one years of age contributing portion of earnings of fifty dollars a month to support of children held not excessive.
8. DEATH.
Children were entitled to damages for loss of deceased father's companionship and society and for his mental and physical suffering.
APPEAL from Circuit Court of Noxubee County.
W.B. Lucas, of Macon, and Leftwich Tubb, of Aberdeen, for appellant.
The deceased was not an invitee; he was a trespasser, or at most a mere licensee.
20 R.C.L. 64, sec. 56; Y. M.V.R. Co. v. Cox, 97 So. 7, 132 Miss. 571; Illinois Central v. Arnola, 29 So. 768, 78 Miss. 788; Robertson v. Y. M.V.R.R. Co., 118 So. 181, 152 Miss. 333; Y. M.V. v. Mansfield, 134 So. 577, 160 Miss. 672.
Within the purview of the rule that an owner or occupier is liable to those and those only who come upon his premises by invitation, it seems to be the general opinion that an invitation cannot be implied from a mere toleration of trespassers.
It is established that one who merely suffers or acquiesces in the use of his premises, or permits others to enter thereon for their own purposes, does not owe to such persons the duty due to those who enter by invitation.
20 R.C.L. 64, sec. 56; Robertson v. Y. M.V.R.R., 152 Miss. 341; 2 Words and Phrases, second series, Invitation, 1190-1192; Illinois Central Railroad Co. v. Arnola, 78 Miss. 788, 29 So. 768, 84 Am. St. Rep. 645; Yazoo Railroad Co. v. Cox, 132 Miss. 571, 97 So. 7; Allen v. R.R. Co., 111 Miss. 267, 71 So. 386.
Mr. Cash was a man, at least of average intellect; one of the witnesses says above average, and that he possessed all of the ordinary faculties of sight and hearing; therefore the defendant owed him no duty to suspend its business operations or to otherwise take any active measures to prevent accident and injury to him on this occasion, except merely to refrain from doing him a wilful hurt or wrong.
20 R.C.L. 57, sec. 53; 1 Thompson on Negligence, secs. 945 and 987; United Zinc Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed. 615; N.Y., N.H. H.R.R. Co. v. Frutcher, 260 U.S. 141, 67 L.Ed. 173; Erie R. Co. v. Hilt, 247 U.S. 97, 62 L.Ed. 1003; Galveston Oil Co. v. Morton, 70 Tex. 400[ 70 Tex. 400], 8 Am. St. Rep. 611, 615; Poling, Admr., v. Ohio River R. Co., 38 W. Va. 645, 24 L.R.A. 215, 226; Indian Refining Co. v. Mobley, 121 S.W. 658, 24 L.R.A. (N.S.) 497, 503; Ala. Great So. Ry. Co. v. Godfrey, 156 Ala. 202, 47 So. 185, 130 Am. St. Rep. 76, 90; Chas. Fleckenstein, Jr. v. Atlantic Pacific Tea Co., 102 A. 700, L.R.A. 1918C 179; Woolwine v. Chesapeake Ohio R. Co., 36 W. Va. 329, 15 S.E. 81, 16 L.R.A. 271; Shafer v. Tacoma Eastern R. Co., 157 P. 485, L.R.A. 1916F 114, 117 and note 117-120; Watson v. Manitou Pikes Peake Ry. Co., 41 Col. 138, 92 P. 17, 18 L.R.A. (N.S.) 916, 922 and note 916-921; M. O.R. Co. v. Strand, 64 Miss. 784; Dooley v. M. O.R. Co., 69 Miss. 648; Louisville, New Orleans Texas Ry. Co. v. Williams, 69 Miss. 631, 12 So. 957; Richmond Danville R. Co. v. Burnsed, 70 Miss. 437; Illinois Central v. Arnola, 29 So. 768, 78 Miss. 787, 84 Am. St. Rep. 645; Ingram Lbr. Co. v. Harvey, 53 So. 347, 98 Miss. 11; Yazoo M.V.R. Co. v. Huff, 111 Miss. 486, 71 So. 757; Yazoo M.V.R. Co. v. Cox, 97 So. 7, 132 Miss. 364; Salter v. DeWeese-Gammill Lbr. Co., 102 So. 268, 137 Miss. 229; Bonhomie H.S. Ry. Co. v. Hinton, 124 So. 271, 155 Miss. 173; Yazoo M.V.R. Co. v. Mansfield, 134 So. 577, 160 Miss. 672; Robertson v. Yazoo M.V.R.R. Co., 152 Miss. 333.
The court erred in overruling defendant's motion to exclude evidence offered by plaintiff's touching the expectancy of the decedent and gifts made by him to them.
Reily Parker, of Meridian, for appellees.
It is the contention of the appellee that it is immaterial in this case as to whether or not the deceased is to be classified as an "invitee," "licensee" or "trespasser," because these various legal terms are used and applied in cases where the duty of anticipating the presence of the person injured is involved, but are not useful in those cases where the negligence complained of consists in positive acts done after the presence of the injured person is fully known.
Our court in the case of New Orleans, M. C.R. Co. v. Cole, 57 So. 556, gives the true definition of negligence as follows: "The failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury."
There is a duty owing to a trespasser that is more than to refrain from wilful and intentional injury, but it extends to the point of requiring precautions to avoid doing an injury to a person where reasonable care, based upon past incidents, reveals the probability of the presence of persons who might be injured if care is not exercised.
45 C.J. 450; Pettyjohn Sons v. Basham, 38 A.L.R. 391; Pomponio v. New York R.R. Co., 32 L.R.A. 530.
The designation of a party as being a "licensee" or an "invitee" does not change the rule with regard to the necessary and proper regard for human safety.
Brigman v. Fiske-Carter Construction Co., 49 A.L.R. 773; Walsh v. Pittsburg Ry., 32 L.R.A. (N.S.) 559; Christian v. I.C. Railroad Co., 15 So. 71.
It is not correct to contend that the rule of wilful and intentional injury is applicable to this case now before the court. The servants of the appellant in this case did see the deceased; they did appreciate his danger, and they did know that he was not in a position to extricate himself, and while in that condition, they failed to exercise reasonable care to prevent injury.
Owens v. Y. M.V.R.R. Co., 47 So. 518.
A person cannot escape liability for negligence merely because the person injured was a trespasser, where before the commission of the negligent act the presence of the trespasser was known to him, or ought to have been known, and by use of ordinary care defendant might have avoided the injury.
29 Cyc. 443; Turner v. Y. M.V.R. Co., 33 So. 283; 20 R.C.L. 61; I.C.R.R. Co. v. Mann, 102 So. 853; Robert Jamison v. I.C.R.R. Co., 63 Miss. 33; Southern R.R. Co. v. Pittman, 52 So. 207; Y. M.V.R. Co. v. Messina, 67 So. 963; I.C.R.R. Co. v. Cole, 74 So. 766; Y. M.V.R.R. Co. v. Lee, 114 So. 866; I.C.R.R. Co. v. Carroway, 58 So. 707.
The appellees instituted this suit in the circuit court of Noxubee county against the appellant, Murry Chevrolet Company, seeking to recover damages for the death of their father alleged to have been caused by the negligence of the officers and employees of the appellant. There was a verdict and judgment in favor of the appellees in the sum of five thousand dollars, from which this appeal was prosecuted.
The material facts in this case are not in dispute. The appellant owned and operated a place of business in the city of Macon where automobiles were bought, sold, serviced and repaired, and gasoline sold. The gasoline filling station was in front of the building in which the business was operated. The front part of the building itself was the office and salesroom, while the rear was used as a repair shop, and for the storage of automobiles. This room was about seventy-nine feet in width by one hundred twelve feet in length, and along the south wall thereof there was located a workbench. About seven or eight feet from this bench there was a large stove which was used to heat the room during cold weather, and to keep it comfortable for the employees of the appellant and such other people as might have business therein.
The father of the appellees, Jim Cash, was engaged in business just across the street from the appellant's place of business, and was on very friendly terms with the officers and employees of the appellant, and frequently visited in this repair shop for the purpose of social intercourse, and to warm himself in cold weather. On a very cold day in February, 1933, the said Jim Cash went into the appellant's repair shop or service department and proceeded to or near the stove for the apparent purpose of warming himself, and there remained for a considerable length of time. While he was standing near this stove, the appellant's two mechanics were busy about their duties repairing and servicing automobiles which had been brought into the shop. In the course of the discharge of these duties, one of the mechanics found himself in need of a blowtorch. He went to the workbench and took therefrom a blowtorch which was constructed with a receptacle intended to hold gasoline which furnished the flame when the torch was lighted, and this receptacle was known to contain gasoline when the mechanic started to use it. After he picked up the blowtorch, for some reason, the mechanic decided not to use it, and turned and placed it on top of the hot stove. He testified that he knew it would explode if placed on a hot stove, but did not realize he placed it on the stove.
The appellant's vice president and service manager was standing nearby and saw the mechanic place the blowtorch on the hot stove, but he gave no warning whatever, and turned and left the room, leaving the torch on the stove. A few minutes later, at about the same time, the two mechanics observed the torch on the top of the stove and started to remove it, but it exploded before they reached it. By this explosion, both the mechanics were burned, and appellees' father was so seriously burned that he died as a result thereof nine days later.
While there was evidence showing that Cash, the appellees' father, was near the stove at the time the gasoline receptacle was placed thereon, there was no evidence that he saw it placed there, or that he realized that it was on the stove. There was evidence to the effect that water was frequently heated in receptacles placed on this stove, and one of appellant's witnesses testified that there were two other cans on the stove at the time the torch was placed thereon.
The appellant presents three main contentions: First, that the peremptory instruction requested by it should have been granted; second, that the instructions granted the appellees are erroneous; and, third, that the damages awarded are excessive.
Upon this evidence, we are of the opinion that the deceased was a mere licensee upon the premises of the appellant. He had no business to transact with the officers and employees of appellant, and was on the premises for his own pleasure and comfort. This being true, until the servants of appellant discovered that he was in a position of peril, they owed him no duty except not to willfully or wantonly inflict injury on him, but, after discovering him to be in a position of peril, it was their duty to use reasonable care to prevent injury to him. The peril to which the appellees' decedent was subjected was created by the act of appellant's servant. It is a matter of common knowledge that gasoline is highly explosive when brought into contact with fire and heat. Certainly, as the testimony here shows, it is known to all experienced automobile mechanics and service men.
The mechanic who placed the gasoline receptacle on the hot stove testified that he did not know or realize that he placed it on the stove. If it should be conceded, for the purpose of this decision, that this mechanic was thereby relieved of the charge of gross negligence, there is nothing in this record to relieve the appellant's vice-president and service manager of such negligence. He saw this receptacle containing highly explosive and dangerous material placed on the hot stove, in close proximity to a bystander who was on the premises with his knowledge and consent. As an experienced service manager, he was bound to know, and was charged with knowledge of the fact, that there was imminent danger of an explosion, which might seriously injure this bystander who had been placed in a position of peril by the act of his own servant. He did nothing to remove the danger, and gave no warning thereof, but merely turned and left the scene, leaving this highly dangerous explosive on the hot stove. In so doing we do not think it can be said that he exercised reasonable care to prevent injury to one who was subjected to a peril which was apparent, or should have been apparent to him, or to any reasonable person. In fact, he appears to us to have been guilty of negligence so gross as to amount, in law, to wantonness. This being true, the appellees were entitled to a peremptory instruction on the question of liability, and therefore any alleged errors in the instructions granted to them become immaterial.
It is contended that the court below committed error in overruling the appellant's motion to exclude the evidence touching the expectancy and earnings of the deceased, and the gifts made by him to the appellees. There was proof of the age, health, and earnings of the deceased, and that he contributed each month to the support of the appellees, and no error was committed in refusing to exclude this evidence. Vicksburg R., Power Mfg. Co. v. White, 82 Miss. 468, 34 So. 331.
Under the facts in reference thereto, as shown by the record, the court below committed no error in failing, of its own motion, to rebuke a display of emotion by the appellees during the argument of the cause before the jury. From a statement of the trial judge in reference thereto, which was made of record during the hearing of a motion for a new trial, it appears doubtful whether the alleged acts of the appellees in this respect were observed by the jury. The position of the appellees in the courtroom and their conduct were carefully observed by the trial judge, and there was nothing developed in this record which would warrant us in holding that he erred in refusing to set aside the verdict on account of such conduct.
The final contention of the appellant is that the verdict is so grossly excessive as to evince passion and prejudice on the part of the jury. We do not think this contention is maintainable. The proof shows that the deceased was sixty-one years of age, and that each month he contributed a portion of his earnings, which were about fifty dollars a month, to the support of the appellees. The testimony is somewhat doubtful as to the exact amount contributed to the appellees, but, aside from that, other proper elements of damage support the verdict. The appellees, children of the deceased, were entitled to recover for the loss of his companionship and society, and for damages to the deceased, consisting of mental and physical suffering. The deceased was severely burned on the arms, body, and face and lived nine days after the accident, during which time he was conscious and suffered the most severe pain.
The verdict in this case is not as large as the recovery permitted by this court in the case of B. Kullman Co. v. Samuels, 148 Miss. 871, 114 So. 807, on somewhat similar facts. In that case, the deceased was eighty-five years of age; resided with a daughter, one of the appellees, and had no income or estate, and was dependent upon her children for her support. She received injuries to her head, ribs, and lungs, from which she died nine days later, after suffering severe pain which was alleviated as much as possible by the administration of opiates. Doctors' bills and hospital expenses of between seven hundred and eight hundred dollars were incurred, and for these, together with the loss of her companionship and society, and her mental and physical suffering, her children were permitted to recover six thousand six hundred sixty-six dollars and sixty-seven cents. See Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470.
We are unable to say that the verdict is excessive, and therefore the judgment of the court below will be affirmed.
Affirmed.