Crown Cork & Seal Co. v. Kane Ex Rel. Eastern Motor Express, Inc.

131 A.2d 470, 213 Md. 152, 1957 Md. LEXIS 571

• Court: Court of Appeals of Maryland
• Decided: May 1, 1957
• Docket: [No. 128, October Term, 1956.]
• Status: Published

Opinions

Henderson, J.,

delivered the opinion of the Court.

This appeal is from a judgment for the plaintiff, appellee, on a jury’s verdict in a negligence case. The appellant contends that the court erred in refusing to direct a verdict in its favor, and that there was reversible error in the court’s charge to the jury.

The plaintiff was employed by Eastern Motor Express, Inc., as a truck driver’s helper. In the course of his employment he had gone to the appellant’s warehouse, to pick up or deliver loads, on a number of occasions over a period of years. To reach the loading platform trucks are driven past a guard at the outer gate who checks the purpose of the visit. A shipping clerk, or foreman, having an office at the end of the platform, is in charge of the warehouse and directs the placement of trucks in the yard and against the loading platform. Other employees, known as “checkers”, see that the various materials called for in the shipping documents are loaded or unloaded by employees who operate electrically driven trucks, and their helpers. The material in the warehouse, consisting of corks, bottle tops and similar articles, is stored in cartons piled “high up” on skids, with longitudinal and lateral aisles about eight feet wide between. No smoking is permitted in the yard, on the loading platform, or in the warehouse, and signs to that effect are posted. However, smoking is permitted in a room in the cellar of the warehouse, at the foot of a stairway, in which there is a large receptacle filled with sand for extinguishing cigarettes. To get to this room from the loading platform it is necessary to go past the office and pass through the warehouse for a distance of about one hundred and sixty feet.

On the day in question, the plaintiff arrived at the warehouse and reported to the shipping clerk. He was told by the shipping clerk that it would be some time before his truck could be loaded and to “take it easy”. He went through the warehouse to the smoking room as he had often done before. After smoking there for about fifteen minutes, he was returning through the warehouse when he was struck and injured by a loaded fork lift truck that was being backed along an intersecting aisle. Neither the operator of the truck nor the plaintiff saw each other prior to the collision.

Kane testified that he had used the smoking room on perhaps thirty previous occasions. He first learned of it six or seven years ago when one of the checkers told him to go down there, and not to smoke elsewhere. About two months before the accident, he started to smoke on the loading platform and a checker told him to go down in the cellar and smoke. He testified that many of the other truckers habitually used the room. The operator of the fork lift truck testified that he knew that truckers used the room, but that it was maintained for the use of the employees of the company. The foreman of the shipping department testified the smoking room was “something set up by the Fire Marshal and myself. We recognized the fact that our employees were galavanting all around the place and we could save money by providing an area for them.” It was “absolutely not” provided for visiting truckers and helpers. He had seen “some sneak in” and he “chased them right back out”. The checkers had no authority to offer them the use of the room. If truckers wanted to smoke, they were supposed to go off the company premises.

The appellant does not question the legal sufficiency of the evidence of negligence to present a jury question. Cf. Biggs v. Hutzler Brothers Co., 181 Md. 50. It contends that on the evidence presented the plaintiff was at most a bare licensee, to whom the company owed no duty, except to abstain from wilful or wanton misconduct. The case thus turns upon the status of the plaintiff at the time of his injury. If he was an invitee it is conceded that there was evidence of negligence in striking him. On the other hand, if the plaintiff was only a licensee, it is conceded that the appellee has not made out a case. It is well settled in Maryland that a licensor owes no duty to a licensee, except that, if aware of his presence, the licensor must not injure him wilfully or entrap him. Peregoy v. Western Md. R. R. Co., 202 Md. 203, 207, and cases cited. It was there said that “A licensee is one privileged to enter another’s land by virtue of the possessor’s consent, for the licensee’s own purposes. * * * An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant.” See also Austin v. Buettner, 211 Md. 61, 66 & 80, et seq., and Restatement, Torts, § 332, defining “business visitor”, the term preferred in the Restatement, as one “invited or permitted to enter or remain * * * for a purpose directly or indirectly connected with business dealings between them.” In Carroll v. Spencer, 204 Md. 387, 393, it was held that a child playing in a house under construction, whose presence was known to the watchman, was not an invitee. It was said that “Acquiescence is not invitation, and at most, changes the status of the trespasser to that of bare licensee, to whom the owner owes no greater duty than to a trespasser.” See also Jackson v. Penna. R. Co., 176 Md. 1. It was noted in the Carroll case that Maryland has followed what is known as the Massachusetts rule, which denies that an owner or occupier owes a duty to avoid negligent injury to a trespasser or licensee whose presence is known, rather than the Michigan rule favored by the Restatement.

Smoking is a very widespread habit. The plaintiff clearly came on the premises of the defendant for business purposes in which each party had an interest. The plaintiff was required to wait on the defendant’s premises as a matter of convenience to the defendant, and, indeed, he was expressly told to “take it easy” by the person in charge, and had been told by subordinates, on previous occasions, to use that part of the premises reserved and adapted for the use of those who wanted to smoke. For present purposes we may assume that there was no express invitation because of the alleged lack of authority in the subordinates, although it might well be contended that they had apparent authority to extend an invitation. In Banks v. Montgomery Ward & Co., 212 Md. 31, 43, it was said: “It is held generally that an employer cannot escape liability for the acts of his agent by placing limitations on his authority not known to others dealing with him nor properly inferable from the nature of his employment. Lister v. Allen, 31 Md. 543.” We also assume, without deciding, that under Maryland law the mere acquiescence of the subordinates, without more, would place the plaintiff in the status of a licensee, and that there is no distinction, so far as liability to a licensee is concerned, between active and passive negligence on the part of the defendant.

The appellant contends that the appellee was not an invitee or business visitor at the time of his injury, because, in going to and from the smoking room, he was not acting for their mutual benefit, or promoting any business interest of the owner, but acting solely for his own personal pleasure or benefit. This argument overlooks the fact that at least one of the purposes for furnishing the smoking room was to reduce the fire hazard, a purpose that would apply not only to employees but to other persons lawfully upon the premises. The appellee was unquestionably a business visitor when he entered the gate, and he would not lose his status during an enforced period of waiting, unless he ventured into an area that was clearly or obviously reserved for employees. Courtesy and accommodation to employees of regular customers, sent to receive goods, is not unrelated to business advantage. The jury might well have disbelieved the foreman’s statement that such employees were supposed to go out into the street to smoke. Since no other waiting room was provided, it is not an unreasonable inference that it was to the company’s interest to have waiting visitors use the cellar, where they would not be in the way of other employees, and would not be tempted to smoke in forbidden areas.

The cases that proceed upon the benefit theory rely, in many instances, upon rather remote and indirect benefits. Thus, in Austin v. Buettner, supra, the business visitor entered the premises, a tavern, to solicit business for his employer, a banking institution, with whom the defendant had had no previous dealings. In Peregoy v. Western Md. R. R. Co., supra, the plaintiff was injured in a railroad yard while loading material stored there by his employer (a patron of the railroad) free of charge although with the consent of the railroad. Other cases accord the status of invitee to persons returning goods purchased, or reentering premises to retrieve an article left behind. But there is another theory of liability for negligence that does not depend on mutual benefit at all. The cases all recognize that an invitation may be express or implied, and there are many cases in which an invitation has been implied from circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises.

This theory is strongly supported by the most recent commentators on the subject. For a full discussion, see Prosser, Torts (2d Ed.), § 78, and Harper & James, Law of Torts (1956 Ed.), § 27.12. It is pointed out that the test of mutual benefit, in its extended form, makes liability depend in many instances upon the undisclosed intention of the visitor, a subjective test, whereas the other theory is objective in that it stresses custom and the appearance of things. It is said that the pecuniary benefit stressed in the Restatement, Torts, §§ 332, 343, was a minority view advocated by Bohlen, its distinguished reporter. Prosser, supra (p. 456), says: “The Restatement notwithstanding, the second theory [implied invitation] is now accepted by the great majority of the courts, and many visitors from whose presence no shadow of pecuniary benefit is to be found are held to be invitees.” In dealing with the area of invitation (p. 458), he says, in effect, that liability depends upon the evidence of encouragement to go to the unusual place.

The theory of implied invitation has been recognized in a number of Maryland cases, although they have been rested, in whole or in part, upon circumstances indicating at least some economic benefit. In Kalus v. Bass, 122 Md. 467, in which the child of a prospective tenant was held to be an invitee by implication, Judge Urner, for the Court, distinguished Benson v. Baltimore Traction Co., 77 Md. 535, where one of a party of students fell into a vat on the company’s premises while making a tour of inspection by permission previously asked and obtained, on the ground that the visit was not in any manner invited or induced by any act of the defendant company. He cited with approval this passage from Phillips v. Library Co., 55 N. J. L. 307, 315: “ 'The gist of the liability consists in the fact that the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used.’ ” To the same effect he cited Sweeny v. Old Colony and Newport Railroad Company, 92 Mass. 368, 372. In that case Bigelow, C. J., said (p. 374) : “The true distinction is this: a mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby.”

The same theory was applied in Burke v. Md., D. & Va. R. Co., 134 Md. 156, in which the plaintiff was struck by a baggage truck on a steamboat wharf where he had gone to fish, and with the undisclosed intention of buying a newspaper on a steamer moored to the dock. Invitation was implied from the fact that the company had customarily allowed persons other than passengers to fish on- the dock, and to board the excursion steamer to make purchases at the store maintained thereon for the convenience of passengers. In Jackson v. Hines, 137 Md. 621, the plaintiff, who came to a railway and steamboat terminal to meet a relative, was injured on a walkway which the defendant claimed was for the use of employees only, although no notices to that effect were posted. It was held that invitation could be implied from the appearance of the walkway and its customary use by passengers and others. See also Pellicot v. Keene, 181 Md. 135, where recovery was denied to the child of a customer who went behind a counter in a store, in the absence of any evidence of a custom permitting such use. In Elkton Auto Sales Corporation v. State of Maryland, 53 F. 2d 8 (C. C. A. 4th), the plaintiff was an upholsterer having a place of business near an automobile repair shop. He went to the shop to obtain some oil for his sewing machine, and while there solicited or discussed an upholstery job on an automobile in the shop for repairs. He was killed in a gasoline fire, allegedly due to the negligence of the defendant. There was evidence that customers often brought automobiles into the shop for repair, and there were no signs forbidding the public to enter. Judge Chesnut, affirming Judge Soper in the lower court, said: “For the appellant it was contended that Ferry’s visit was for his personal convenience only, while for the appellee it was contended that the evidence warranted the finding that it was for a mutual business purpose. The evidence in the record bearing on this point is not entirely satisfactory but if the distinction were controlling, it is our opinion that there was some evidence from which the jury might have found a common business purpose. In our view of the case, the distinction is not important, because where there is evidence of an implied invitation it is sufficient that the visit is for any lawful purpose.” The appellant relies strongly upon Gordon Sleeprite Corp. v. Waters, 165 Md. 354, where the plaintiff went to the office of the defendant to collect a bill, and finding no one there, entered the factory where he was injured, and it was held that he lost his status of invitee when he did so, and was bound to take the premises as he found them. That case is distinguishable, however, on the ground that there was no evidence of custom or inducement to support an implied invitation. There was also a complete absence of inducement in Carroll v. Spencer, supra.

The same line of distinction appears in other cases dealing with situations where customers or other persons are injured on their way to or from toilets on premises visited by them. Liability is found where there is evidence of a holding out to public use, or the appearances are such as to support an inference of implied invitation, but not where it is made clear to the user that the use is available to employees only, or there are facts that negative any inducement. Among many cases on the subject, see O’Brien v. Harvard Restaurant & Liquor Co., 38 N. E. 2d 658 (Mass.); Lerner v. Hayes-Bickford Lunch System, 51 N. E. 2d 774 (Mass.); Dickau v. Rafala, 104 A. 2d 214 (Conn.); Campbell v. Weathers, 111 P. 2d 72 (Kan.); Liveright v. Max Lifsitz Furniture Co., 187 A. 583 (N. J.); Collins v. Sprague’s Benson Pharmacy, 245 N. W. 602 (Neb.), and Sulhoff v. Everett, 16 N. W. 2d 737 (Ia.).

In the instant case, we think there was evidence to support an implied invitation. The facts that the room was set aside for smoking, that its location was made known to the plaintiff by the checkers on two occasions, that it was habitually used by visiting truckers, and this fact was known to the foreman and the other employees, the absence of any notice to the plaintiff that it was intended solely for employees, and other circumstances in the case, lead us to the conclusion that there was legally sufficient evidence to take the case to the jury on this theory.

The final question is whether the court erred in its charge to the jury. The court correctly stated that the first question was the status of the plaintiff at the time of his injury. He stated that there were “two possibilities: one, that he was a trespasser; two, that he was an invitee.”

It may be noted that the defendant did not ask for any instruction as to the third possibility, that the plaintiff was a licensee. The sixth and seventh prayers of the defendant simply asked for an instruction that if the plaintiff's purpose in going through the warehouse was for his own benefit or convenience, and not for any benefit to the defendant, then he could not recover. These prayers were properly refused because they did not cover the possibility of implied invitatiou relied on by the plaintiff, and the objection to the charge oro this ground was properly overruled. Again, there was no> objection to the charge on the ground that it did not instruct on the intermediate possibility that the plaintiff was a licensee. The assumption on which the case was tried was that the duty of care owed to a licensee is no higher than that owed to a trespasser, and that the plaintiff could not recover unless he was an invitee. Jn view of the complete absence of objection, the appellant cannot now complain of the oversimplification.

The court charged; “If you find that Mr. Kane knew that the smoking room was for employees only and knew he had no business going down there, he was a trespasser. * * * in order to be an invitee a person must be invited to come onto the premises. That doesn’t mean that someone must give him an engraved card with an invitation on it; but that by his actions and general arrangements the person owning the premises should give the person involved the right to understand that he is expected to come onto them.” After summarizing the testimony, the court further said: “If you believe that Mr. Kane knew, or had reason to believe that he should not go down to the smoking room, then he was a trespasser. If you believe that Mr. Kane apparently had authority, or had permission, to go down there to smoke, then you will find that he was an invitee.”

The defendant objected to this part of the charge only on the ground that it told the jury “that the plaintiff had to know he was a trespasser in order to be a trespasser, and that it is unnecessary for him to know it.” But in the remarks just quoted the court modified and corrected his first broad statement. We have often said that a charge must be considered as a whole, and that verbal slips, or isolated phrases will not be condemned unless clearly prejudicial. Cf. West v. Belle Isle Cab Co., 203 Md. 244, 250; Rabinovitz v. Kilner, 206 Md. 455, 464; Texas Company v. Pecora, 208 Md. 281, 298. “Reason to believe” would deny recovery even in the absence of knowledge, and further, recovery was limited to invitation in the sense “that by his actions and general arrangements the person owning the premises should give the person involved the right to understand that he is expected to come onto them.” We think the charge as a whole fairly presented the issue of implied invitation from all the circumstances, and the jury was not misled by the alleged inconsistency in the charge on the point of knowledge.

Judgment affirmed, with costs.