Opinion
No. 39551.
March 21, 1955.
1. Negligence — landlord injured on leased premises — not licensee.
Where lessor entered leased theater building at the express request of the lessee and for the mutual benefit of the parties to enable lessor to examine the roof for leaks and with a view of correcting the situation, the lessor was not a mere licensee as to whom the lessee owed no duty except not to willfully injure her.
2. Negligence — same — duty of agent of corporate lessee.
In attachment in chancery by lessor for injuries sustained on leased premises which she had entered at the request of the lessee to inspect the roof for leaks, evidence established that defendant under his employment as manager of the corporate lessee was in full control of the lessee's theatrical operations, and exercised, pursuant to his employment, full supervision and control of the leased premises and that he was obligated on his own behalf and on behalf of his master to exercise reasonable care to so use the premises as to not injure the lessor.
3. Landlord and tenant — lease — effect of — no right of possession in lessor.
So far as concerns the possession and use of leased premises, the lease operates as a demise or conveyance of the property for a specified period of time, and no right in possession or use remains in the lessor unless expressly reserved.
4. Negligence — invitee.
An "invitee" is a person who goes on premises of another in answer to express or implied invitation of the owner or the occupant or for their mutual advantage.
5. Negligence — owner or occupant of lands — duty as to invitee.
Owner or occupant of lands or buildings who invites others to enter, owes them duty to use ordinary care to have the premises in reasonably safe condition for use in a manner consistent with the invitation, or at least not to lead them into a dangerous trap or to expose them to unreasonable risk.
6. Landlord and tenant — lessor as invitee — lessee's negligence — question for Chancellor.
In such suit, question whether the defendants exercised reasonable diligence to keep the premises in a reasonably safe condition for the use of the lessor as an invitee therein was for the Chancellor.
7. Landlord and tenant — evidence — lessor as invitee — lessee's negligence — established.
Evidence established that the lessor on the occasion was an "invitee," that she sustained her injuries as a direct and proximate result of the failure of the lessee to exercise reasonable diligence to keep the premises in a reasonably safe condition, and that the lessee was liable for the damages caused the lessor.
8. Negligence — lessor as invitee — lessee's negligence — assumption of risk — not applicable.
In such case, lessor was not barred from recovery of the lessee for injury sustained on the ground of assumption of risk where she had never been advised of the existence of the hole which caused her to fall and did not know of its existence.
9. Damages — award — not excessive.
Under facts of case, an award of $10,000 for actual damages was not excessive.
Headnotes as approved by Holmes, J.
APPEAL from the Chancery Court of Winston County; J.K. GILLIS, Chancellor.
Snow Covington, Meridian, for appellants.
I. Alas, the ultimate has been reached in this case in effort to attach liability for personal injury. The owner of real property leased to another, with reservation to enter for inspection and to make repair, sues her lessee in tort for alleged injuries resulting from defect produced or resulting from a condition which the owner-claimant was bound by solemn contract to care for.
II. If recovery can be had under the facts here in evidence, then the whole theory and reason of liability or non-liability in tort has changed; and, henceforth, when there has been injury, a conveniently named defendant must pay and all business must bow to the new law of distribution to the claimed injured.
III. In this case, two defendants were named as responsible in damages to appellee. One, the lessee of premises on which injury occurred, and the other, employee of the lessee of the leased premises.
IV. As there is a difference in the theory of claimed liability as to appellant Tingle and as to appellant Strand Enterprises, Inc., on certain basic principles, we will first discuss contention of appellant Tingle as to principle not applicable to appellant Strand Enterprises, Inc., and will then, later, discuss principles commonly applicable to both appellants.
V. Tingle was an employee of Strand Enterprises, Inc. His services belonged to his employer so long as the relation of employer and employee continued. His acts were for and on behalf of his employer and not for himself, whenever he acted in connection with the picture show business at Philadelphia. His claimed liability here involved is for acts and words relating to the picture show business, for aside from his employment, Tingle would not have been connected with the condition of the Pix Theatre, and would not have even known of the condition of the building in which appellee received her injuries. His duties in connection with the matter were owed his employer and were not for his own interest.
VI. According to appellee and according to Tingle, the subject of his conversations with appellee was solely and wholly in relation to the condition of the building. Appellee's obligation under the lease contract and the damage to the inside of the building and property of Strand Enterprises, Inc., located therein was to Strand Enterprises, Inc., and not to Tingle. His only interest was the duty he owed his employer as employee. Appellee acted for herself, and Tingle for the Strand Enterprises, Inc. He had no duty to perform except as employee of Strand Enterprises, Inc., and whatever obligation he had as to appellee, if any, was the obligation of Strand Enterprises, Inc.
VII. On the occasion in question, the day on which appellee went to the Pix building, Tingle was not present. He was not in Philadelphia and did not so much as see Mrs. Turner that day. She claimed Tingle had told her he would have the janitor give her the keys to the Pix Theatre building or go with her to the building for her convenience and to make inspection, but he had said nothing to the janitor in this regard. On the contrary, he had instructed him to keep the doors to the theatre locked at all times when not open for the showing of pictures, and not to let anyone in the show, except when a picture was being shown. Jordan sent Poe to unlock the Pix building and to let appellee in because he knew she owned the building and requested admittance. Under the terms of the lease contract, appellee had the right to make inspection and the right to enter the building to make required inspection. Her purpose in going to the building was to make inspection, and she was about that object when her injury occurred. Tingle had no duty as regards appellee's inspection. It is true he had reported the condition of the roof and the damage caused thereby, but this was in fulfillment of his obligation to his employer. When report was made, his obligation in that regard had been fulfilled and was at an end.
VIII. It is, therefore, inescapable that Tingle had no duty to perform as to appellee in connection with her inspection of the Pix building; that he was not present when appellee went to the theatre and obtained admittance to the building; that appellee knew Tingle was not present, but was out of town when she went to the theatre; and she knew he was away at all times while she was making inspection.
IX. Tingle had purchased a metal oil drum and had it placed so as to protect the rotten place in the small space south of the exit door and between the stair and the west wall of the building. He had instructed that the drum be kept in place. It had been in place for a long period and, so far as Tingle knew, was in place when he left Philadelphia. Again, he did not know it had been moved and, in fact, Poe testified he moved the drum immediately before the accident and at a time when Tingle was away and was not present, not even in Philadelphia. Jordan did not know the drum had been moved and saw it inside the wareroom when he went there after the accident.
X. There was no privity of contract between Tingle and appellee, and Tingle owed appellee no duty as regards maintenance of the building. Mullican v. Miss. Light Ry. Co., 121 Miss. 806, 83 So. 819; 35 Am. Jur., Sec. 584 p. 1021.
XI. We recognize the principle that where real property is leased, there is an implied covenant for quiet possession and enjoyment of the premises, unless the contract of lease either by express terms or by implication reserves the right of entry to the lessor. Gulf Rfg. Co. v. Terry, 163 Miss. 869, 142 So. 457.
XII. A fair and reasonable interpretation of the lease can mean nothing but that appellee reserved expressly and by implication the right to make inspection for the purpose of maintenance, repair, and rebuilding. Anderson v. Dickey, 24 N Y Supp. 576; Billig v. Nelson Properties, 2 N.Y. Supp.2d 264, 166 Misc. 301; Causey v. Norwood, 170 Miss. 874, 156 So. 592; D.L. Fair Lumber Co. v. Weems (Miss.), 15 So.2d 505; Flanders v. New Hampshire Savings Bank, 7 A.2d 233; Hinds Motor Co., Inc. v. Hederman, 201 Miss. 899, 30 So.2d 70; Miller v. Miller, 217 Miss. 650, 64 So.2d 739; Snedecor v. Pope, 113 Ala. 275, 39 So. 318; T.H. Lodge v. Presbyterian Church, 103 Miss. 130, 60 So. 66; 36 C.J. 687; 51 C.J.S., Sec. 417 pp. 1108-09; 52 C.J.S., Sec. 417 p. 18.
XIII. The Court found that appellee was an invited guest on the interior of the leased building by invitation, at the time of her claimed injury, and applied the law applicable to an invitee on real property. This was error, for appellee was not an invitee under the facts and under the law of this case. See citations supra.
XIV. The owner of property, leased to another with reservation of right of entry, cannot recover damages from the lessee for claimed injuries, where the injuries have resulted from the condition of the property, and the owner had reserved the right of entry thereon. 32 Am. Jur., Landlord and Tenant, Sec. 791; Annos. 45 A.L.R. 38, 76; 106 A.L.R. 1363, 13670.
XV. We want to impress upon the Court the fact the so-called invitation to appellee to visit the inside of the premises was Tingle reporting a damage which was appellee's obligation and his making complaint. The most that can be said was that Tingle and appellee agreed proper inspection by appellee of damage for which she was responsible could only be made from the inside of the building, and Tingle gave appellee permission to go inside the building and make the necessary inspection which she wanted to make for herself. The question here is plain. It is not a question of fact, but is a question of law. An invitation imports a different situation and presents a different viewpoint. Allen v. Yazoo M.V.R.R. Co., 111 Miss. 276, 71 So. 386; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Cato v. Crystal Ice Co., 109 Miss. 590, 68 So. 853; Murry Chevrolet Co. v. Cotton, 169 Miss. 521, 152 So. 657; Roberts v. Miss. Power Light Co., 193 Miss. 627, 10 So.2d 542; Westmoreland v. Miss. Power Light Co., 172 Fed. 643; Yazoo M.V.R.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577.
XVI. We cannot, by the wildest stretch of imagination, see how the Court can hold that appellee was an invitee in her own building, making inspection to determine how she would go about fulfilling an obligation in her lease, and acting in accord with reservation, express and implied, to enter and make inspection and repairs. The most that can be said would be that appellee was a licensee, provided the Court should feel that appellee was not acting pursuant to her reservation. In either case, that is, if appellee was acting under her reservation or if she was acting as a licensee, appellants would not be liable to her in damages, unless they willfully injured her.
XVII. It has long been held in Mississippi that the only duty one in possession of land owes to a licensee is not to willfully injure the licensee. Bridges v. Jackson Elec. Ry., Light Power Co., 86 Miss. 584, 38 So. 788; McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Mississippi Power Co. v. Griffin, 81 F.2d 292; Mobile Ohio R.R. Co. v. Clay, 156 Miss. 463, 125 So. 819; Paine v. Long Island City Elec. Illuminating Co., 72 N Y Supp. 279; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; Smith v. Harwood Elec. Co., 225 Pa. 165, 98 A. 473; Vinson v. Barnhill, 203 Miss. 740, 34 So.2d 363; Yazoo M.V.R.R. Co. v. Huff, 111 Miss. 486, 71 So. 757; see also cases cited under Point XV.
XVIII. Neither appellant was present in person or by agent when the accident occurred. Poe was not an employee of either appellant, and Jordan had no right or authority to employ Poe or to turn the keys to the building over to him. Parker v. Film Transit Co., 194 Miss. 542, 13 So.2d 159; Thomas v. Hively, 196 Miss. 187, 16 So.2d 632.
XIX. The amount of the award in this case was, and is, excessive. The proof showed a fracture of the small bone of the leg and other damages which the Court will recognize were not of serious or crippling nature. It was claimed arthritis had set up, but it was shown that most people of appellee's age have arthritis. The amount of $10,000 was too great an award.
Strong Smith, Louisville; Crawley Brooks, Kosciusko, for appellee.
I. A tenant or occupant of a building owes an invitee therein the duty to have the premises in a reasonably safe condition; and if the invitee is injured as a proximate result of the negligence of the tenant, then the tenant is liable to the invitee. El Paso Printing Co. v. Glick (Tex.), 246 S.W. 1076; Gardner v. Copley-Plaza Operating Co., 220 Mass. 372, 107 N.E. 1000; Mapp v. Saenger Theatres, 40 F.2d 19; Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222; New Orleans N.E.R.R. Co. v. Brooks, 175 Miss. 147, 165 So. 804; Nowell v. Harris (Miss.), 68 So.2d 464; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; 32 Am. Jur., Sec. 818 p. 696; 65 C.J.S., Secs. 38, 83-4 pp. 503, 591-2.
II. If one enters a building occupied by another for a purpose mutually beneficial to the occupant and the person entering, then an invitation is implied. El Paso Printing Co. v. Glick, supra, Nowell v. Harris, supra; Robertson v. Yazoo M.V.R.R. Co., 152 Miss. 333, 118 So. 181; Yazoo M.V.R.R. Co. v. Mansfield, 160 Miss. 672, 134 So. 577; 65 C.J.S., Sec. 43 (3b) p. 511; A.L.I., Restatement of the Law (Torts), Sec. 332.
III. A lease operates as a conveyance of the property for a specific period of time, and no right of possession or use remains in the lessor unless expressly reserved. Advance Industrial Supply Co. v. Eagle Metallic Copper Co., 267 Pa. 15, 109 A. 771; Collins v. Wheeless, 171 Miss. 263, 157 So. 82; Gulf Rfg. Co. v. Terry, 163 Miss. 869, 42 So. 457; Sovereign Camp W.O.W. v. Thomas, 171 Miss. 263, 152 So. 82.
IV. A lease contract will be construed most strongly against the party preparing it. T.H. Lodge v. Presbyterian Church, 103 Miss. 130, 60 So. 66.
V. Unless a lease contract provides to the contrary, it is the duty of the tenant to maintain and keep in repair the leased premises. Causey v. Norwood, 170 Miss. 874, 156 So. 592; Evans v. Hill, 183 Miss. 7, 181 So. 847; Miller v. Miller, 217 Miss. 650, 64 So.2d 739; Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350; Rich v. Swalm, 161 Miss. 505, 137 So. 325.
VI. Where the duty is imposed upon a landlord to repair the leased premises, the tenant must notify him of the need of repairs or the landlord must have knowledge of the need thereof before he can be put in default for failing to repair. 32 Am. Jur., Sec. 71 p. 587; 51 C.J.S., Sec. 371 p. 1110.
VII. Where the defendant knew of the defect or danger, the question whether he took reasonable and proper precautions is generally a question of fact for the jury. 65 C.J.S., Sec. 271 p. 1205.
VIII. When an employee is placed in charge of one's business in the absence of the manager, his acts are binding on the principal regardless of the limitations placed on his authority by the principal. Cannady's Used Cars v. Dowling, 221 Miss. 293, 72 So.2d 696.
IX. The testimony of the principal and agent is not conclusive as to the want of agency, but the facts and circumstances in each case may be more persuasive. Fanning v. C.I.T. Corp., 187 Miss. 45, 192 So. 41.
X. Where an employee has the authority by implication to employ someone to help him, the employer is responsible for the helper's negligence. If the employer knew or was presumed to have known that the helper had been assisting the employee on other occasions and had acquiesced therein, then the employer is liable for the helper's negligence. Alabama-Great Southern R.R. Co. v. Alsup (Miss.), 101 F.2d 175; Brightwell v. Simpson, 106 W. Va. 471, 146 S.E. 283; Gulf Rfg. Co. v. Nations, 167 Miss. 315, 145 So. 327; Harris v. Bell, 234 Ala. 679, 176 So. 469; Holuptzck v. Great Northern R.R. Co., 55 Minn. 446, 57 N.W. 144; Malco Theatres v. McLain, 196 Ark. 188, 117 S.W.2d 45; Pittsboro Dock Co. v. Detroit Transp. Co., 122 Mich. 445, 81 N.W. 269; Pullen v. Faulkner, 196 Ark. 231, 117 S.W.2d 28; Wellman v. Miner, 44 N.Y.S. 417.
XI. In order to assume the risk, the injured party must know and appreciate the danger and deliberately expose himself thereto. Saxton v. Rose, 201 Miss. 815, 29 So.2d 646.
XII. The verdict in this case is not excessive. Belzoni Hardware Co. v. Cincuiani, 137 Miss. 72, 102 So. 470; City of Laurel v. Hutto, 220 Miss. 253, 70 So.2d 605; Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541.
XIII. The findings of the Chancellor when based on substantial evidence will not be reversed on appeal. Butler Estate v. McQuarters, 210 Miss. 86, 48 So.2d 617; Evans v. City of Jackson, 201 Miss. 14, 28 So.2d 249; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523.
This is an attachment suit in chancery brought by the appellee in the Chancery Court of Winston County against the appellants, Strand Enterprises, Inc., a non-resident corporation, and Fletcher Tingle, Jr., a resident of Neshoba County, and against Otiss Boyles, a resident of Winston County.
The appellee sought by her original bill to recover of the appellants both actual and punitive damages for personal injuries alleged to have been sustained by the appellee and caused by the negligence of the appellants, and to subject by attachment real estate owned by the non-resident defendant in Winston County, and to bind in the hands of the said Otiss Boyles funds and effects in his hands belonging to and owing to the said non-resident defendant.
After hearing the evidence, the chancellor rendered a decree in favor of the appellee and against the appellants for actual damages in the sum of $10,000, and from this decree the appellants appeal.
The material facts as shown by the testimony of the appellee are substantially as follows: The appellee owned a brick building in the City of Philadelphia, Mississippi, and on November 1, 1950, by agreement in writing, leased the same to Strand Enterprises, Inc., for a term of five years. The building had theretofore been converted by a former tenant for use in the operation of a moving picture theater. Strand Enterprises, Inc., used the building in the operation of a moving picture theater under the name of Pix Theater. It also operated another moving picture theater in the City of Philadelphia at a different location under the name of the Strand Theater. The appellant, Fletcher Tingle, Jr., was the manager of both theaters and in full charge thereof, and maintained his office in the Strand Theater. Strand Enterprises, Inc., employed a janitor, Charlie Jordan, for both theaters. He carried a key to both theaters and was left in charge of both theaters when Tingle was out of town. The Strand Theater operated seven days a week, and the Pix Theater operated only two days a week, namely, on Friday and Saturday. During the non-operating days of the Pix Theater, the same was kept locked, with keys thereto in the possession of Tingle and Charlie Jordan, and no one was admitted thereto except by Tingle or Charlie Jordan.
Under the terms of the lease, the lessor was obligated to make all necessary repairs to the exterior of the building, and the lessee was obligated to maintain the interior of the building. From time to time leaks developed in the roof of the building, and upon being notified of the same by Tingle, the appellee promptly sent someone to repair the leaks. During the closed periods of the Pix Theater, the appellee had no access thereto unless admitted by the manager or janitor. After leasing the building to Strand Enterprises, Inc., and prior to the injuries complained of, the appellee had never been in the building except on one occasion when she went with Tingle up a small flight of stairs behind the projection room to look at an outside awning which was reported to her to be out of repair. She had never, prior to her injuries, gone in the main auditorium or the storage room to the rear thereof. During April or May, 1953, there was a heavy wind and rain storm which damaged a flue in the roof and caused leaks therein and on being notified of this condition by Tingle, the appellee sent a competent roof man to make the necessary repairs. During a subsequent rain it developed that the roof still leaked. Tingle notified the appellee of this condition and told her that property of Strand Enterprises, Inc., was being damaged, and requested her to come to the building during a rain and examine the situation from the inside and ascertain where the leaks were and what property of the lessor was being damaged, with a view of correcting the situation and protecting the property of the lessor, and further told her that he would unlock the building and let her in and that if he was not in his office she could have the colored boy who carried a key to the building unlock the same and let her in. Later, during a rain on July 20, 1953, which was a Monday, and a day when the Pix Theater was closed and locked, the appellee went to Tingle's office with a view of entering the building to see where the leaks were and to see what damage, if any, was being done to the property of Strand Enterprises, Inc., and with a view of correcting the situation, all in accordance with the request theretofore made of her by Tingle. She found the janitor, Charlie Jordan, engaged in cleaning up, assisted by a colored boy named Johnnie Poe. The appellee had observed Poe assisting Jordan many times before for a long period of time. Poe was not paid by Strand Enterprises, Inc., but was paid by Jordan.
The appellee inquired for Mr. Tingle and was told that he was not in. She then made known her mission to Jordan, and told him of Mr. Tingle's request that she go in the building and of his statement that if he, Tingle, was not in, the boy with the keys would admit her to the building. Jordan took the keys from his pocket and gave them to Poe and told Poe to go with appellee and show her through the building. The appellee went with Poe, who unlocked the front of the building and admitted her. She went through the auditorium and through an exit which was covered by a curtain and which led to the storage room, and through a narrow passageway which led through an abandoned ladies' rest room. There was a globe socket in the ceiling but no bulb was in it. While it was daylight on the outside, it was only dimly lighted inside. The appellee viewed the roof and looked to see what property of the Strand Enterprises, Inc., had been damaged. She observed a small room at the southwest corner of the building which had formerly been a men's rest room, and started to this room to see if it contained any property of Strand Enterprises, Inc., which had been damaged. As she started through a narrow space between a small stairway and the wall, she stepped in a hole in the floor and sustained severe injuries. The hole was about twelve inches wide, two feet long, and two or more feet deep. The hole had been there for more than two years and it was claimed by Tingle that it was the result of rotting caused by water leaking down the wall and onto the floor. The appellee testified that the hole was wholly unguarded, and that she had never been told of its existence by Tingle, nor requested to repair it by Tingle, and that she did not know of its existence. She further testified, in denial of Tingle's testimony that he kept the passageway to the hole guarded by a sixty-gallon steel drum, that there was no such object guarding the hole at the time she sustained her injuries, but that she had seen a steel drum on the outside of the building.
The appellant Tingle wholly denied the testimony of the appellee, denying that he had requested her to go in the building for the purpose of examining the leaks in the roof and seeing about the property of Strand Enterprises, Inc., which was claimed to be damaged, and further testified that he had told the appellee about the hole in the floor and had requested her to repair it. He admitted that he knew the hole was dangerous, but said that he kept it guarded by the steel drum.
It is readily apparent that the evidence on the vital issues here involved was conflicting. The chancellor resolved this conflict in favor of the appellee, and accordingly found that the appellee entered the building at the request of Tingle for the mutual benefit of herself and the appellants; that she was an invitee therein for the mutual benefit of both parties; that the appellants knew the hole was in the floor and knew that it was dangerous; that the hole had been in the floor for more than two years, and that the appellants had failed to exercise reasonable care to take proper and reasonable precautions to avoid injury to persons lawfully on the premises.
We think that the chancellor's findings of fact are amply justified under the evidence and we are not warranted in saying that they are manifestly wrong.
(Hn 1) The appellants contend, however, that under the terms of the lease there was an implied reservation of right in the appellee to go on the inside of the building to inspect the same for leaks, and that hence the appellee was a licensee, and that the appellants owed her no duty except not to wilfully injure her. We find nothing in the terms of the lease which conferred upon the appellee either expressly or by implication the right to enter the building otherwise than at the request and by the consent of the appellants. It is to be noted that the answer of the appellant, Strand Enterprises, Inc., avers that the appellee went into the building on the occasion complained of without the permission or acquiescence of the appellants, or either of them. This averment negatives the contention that she entered the building under an implied right granted by the terms of the lease. Furthermore, on the occasion in question, the appellee did not enter the building in reliance either by the appellee or the appellants on any claimed right under the terms of the lease. The appellee entered the building at the express request of the appellants and for the mutual benefit of the parties, that is, to enable the appellee to examine the roof for leaks from the inside of the building, and to ascertain what, if any, damage was being done to the property of the Strand Enterprises, Inc., with a view of undertaking to correct the situation.
(Hn 2) It is argued by the appellants that the appellant Tingle was merely an employee of the Strand Enterprises, Inc., and owed no duty to the appellee. We think this argument is unsupported by the facts as found by the chancellor. The appellee, under his employment as manager, was in full charge and control of the theaters of Strand Enterprises, Inc., in Philadelphia, and exercised pursuant to his employment full supervision and control of the premises in question. As the servant of the Strand Enterprises, Inc., he was under an obligation both on his own behalf and on behalf of his master, Strand Enterprises, Inc., to exercise reasonable care to so use the premises which he controlled as not to injure another lawfully therein. 57 C.J.S.,
The legal principles applicable to the facts as found by the chancellor are well settled.
(Hn 3) "So far as concerns the possession and use of leased premises, the lease operates as a demise or conveyance of the property for a specified period of time (Rich v. Swalm, 161 Miss. 505, 516, 137 So. 325), and no right of possession or use remains in the lessor unless expressly reserved, and no such appears in this case." Collins v. Wheeless, 171 Miss. 263, 157 So. 82.
(Hn 4) "An invitee is a person who goes on premises of another in answer to express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage." Nowell v. Harris, (Miss.) 68 So.2d 464; Marie L. Patterson v. Ralph J. Sayers, d/b/a The Concord Hotel, (Miss.) No. 39,499, decided March 16, 1955.
The rule with respect to the duty owing by the occupant or owner of premises to an invitee therein, approved by this Court in Nowell v. Harris, supra, and as stated in 38 Am. Jur., page 754, Sec. 96, is as follows:
(Hn 5) "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 persons 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 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."
In the very recent case of Marie L. Patterson v. Ralph J. Sayers, d/b/a The Concord Hotel, supra, this Court said: "Now, as to the duty Mr. Sayers owed Mrs. Patterson, it seems to be settled that the operator of premises is under duty to exercise reasonable diligence to keep such premises in a reasonably safe condition for use by an invitee," citing numerous authorities.
(Hn 6) The question as to whether or not the appellants exercised reasonable diligence to keep the premises in question in a reasonably safe condition for the use of the appellee as an invitee therein was one for the determination of the chancellor. 65 C.J.S., Sec. 271, page 1205.
(Hn 7) In view of the facts in this case, as found to be true by the chancellor, and under the legal principles applicable as hereinbefore referred to, we are of the opinion that the chancellor was correct in his conclusion that the appellee, on the occasion in question, was an invitee on the premises, and that she sustained her injuries as a direct and proximate result of the failure of the appellants to exercise reasonable diligence to keep such premises in a reasonably safe condition for use by an invitee, and that appellants accordingly subjected themselves to liability to the appellee for damages arising out of her injuries sustained on the occasion in question.
(Hn 8) The appellants further argue, however, that the appellee should be barred of recovery under the doctrine of assumption of risk. According to the appellee's testimony, which the chancellor found to be true, she had never been advised of the existence of the hole and did not know of its existence. In the case of Saxton v. Rose, 201 Miss. 814, 29 So.2d 646, the Court recognized the well settled principle that in order for one to be barred of recovery under the doctrine of assumption of risk, he must know and appreciate the danger and deliberately expose himself thereto. It is apparent in the case before us, under the chancellor's findings of fact, that the appellee did not know of the existence of the hole and did not know and appreciate the danger thereof, and certainly did not deliberately expose herself to the danger thereof. The contention, therefore, that the appellee is barred of recovery in this case under the doctrine of assumption of risk is, in our judgment, not well founded.
It follows from what has been said that we are of the opinion that the chancellor's findings of fact are fully warranted by the evidence, and that he was correct in his conclusions of law which imposed liability upon the appellant for the damages sustained by the appellee and arising out of her injuries.
(Hn 9) It is finally contended by the appellants that the amount of damages awarded by the chancellor is excessive. We do not think so in view of the undisputed evidence as to the nature and extent and severity of the appellee's injuries. The proof shows that prior to the appellee's injuries she was an active, healthy woman. She was 65 years of age, with a life expectancy of 11.55 years. She did all of her house work, including sweeping, waxing floors and cooking, and in addition, waited on an invalid brother who was confined to a wheel chair. A small bone in one of her legs was broken, and the ligaments around her ankle were torn, and a piece of bone was chipped off of her kneecap. Immediately following her injury, she made her way out of the building by holding on to the seats along the aisle of the theater. She limped to her car and drove home by using her left foot. She drove into her backyard and crawled on her hands and knees up the back steps to her bedroom. She suffered agony, according to her testimony and that of her daughter. She did not realize that she had any broken bones until she had a doctor a few days later and her leg was X-rayed. She was confined to her bed for approximately four months, and had to employ a practical nurse at an expense between $300 and $400. She is allergic to sedatives and was unable to take anything to relieve her pain. At night she has to elevate her limb and put hot packs on it to help alleviate her suffering. If she is on her feet for any length of time, the limb swells and she has to go to bed and apply hot Epsom Salts packs in order to reduce the swelling. She has been unable to sleep at night because of her intense suffering. At the time of the trial eight months later, she was still suffering pain and unable to do her usual house work. The doctor testified that as a result of her injuries she has developed traumatic arthritis. He further testified that her injuries have been very painful and that the injured leg is now larger than the other leg, and that in his opinion she will continue to suffer pain, and that her condition will grow progressively worse, and that her injury is permanent.
The chancellor expressly denied any award of punitive damages and confined his award to actual damages. We think that the award made by the chancellor is amply justified under prior decisions of this Court. Belzoni Hardwood Company v. Cinquimani, 137 Miss. 72, 102 So. 470; Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541; Laurel v. Hutto, 70 So.2d 605.
Considering the record as a whole and in view of the chancellor's findings of fact which we are unable to say are manifestly wrong, we are of the opinion that the decree of the chancellor should be, and it is, affirmed.
Affirmed.
McGehee, C.J., and Hall, Lee and Ethridge, JJ., concur.