*1 Court from interfering with unobstructed use of the right of way, have now deliberately obstructed same. They this request Court to that the submit to a require defendant relocation of the of right way, and dam- accept consequent inclined, for its ages relocation. if this Court were Even circumstances, relief, under the above has grant such authority do so. There are constitutional barriers that definitely prevent granting. request plain- be tiffs allowed to relocate defendant’s of right way him for such relocation amounts to pay damages permitted taken for No request private property private use. has authority compel court the owner of land to sur- render his to another of property lacking power person, domain, because, eminent for a sum of exchange money; of one of person’s property use taking private another, with full is a compensation, deprivation even without due of law violation of Article property process 23 of the Declaration of and the Fourteenth Rights Amendment of the Constitution of the United States. Easter Co., supra, Dundalk 307 of Holding p. v. bill prayed only be noted that the may complaint that the had a plaintiffs right perma-
a declaratory decree him way upon furnishing close the defendant’s nently right and the ingress egress pay- with a means of comparable no such appellees right, ment of have damages. Since the bill of dismissing complaint. was correct Chancellor affirmed, Decree costs. COMPANY, INC. AND CORK CROWN SEAL KANE, EAST to own use use EXPRESS, INC. MOTOR ERN Term, 1956.] [No. October *3 1,May Decided 1957. Bruñe, Coeeins,
The cause was and J., C. before argued Henderson, Prescott, Hammond JJ. Andrew, Rollins, Smalkin,
Thomas with whom were G. brief, Weston & Andrew on the appellant. Hill, D. with whom were & Altjeld, Samuel Altfeld
Buckmaster, White, brief, Mindel on the ap- & Clarke pellee.
Henderson, delivered the of the J., opinion Court. This is from a for the appeal judgment plaintiff, appellee, on a case. The con- jury’s negligence verdict tends that the court erred to direct a refusing verdict favor, and that there was error the court’s reversible charge to the jury. Inc.,
The plaintiff employed by Motor Express, Eastern as a truck driver’s In the course his employment helper. warehouse, gone or deliver appellant’s pick up loads, on a number of occasions To period years. over at guard reach the trucks are driven loading platform past A outer checks the gate purpose ship- who visit. clerk, foreman, ping an office at end of the having plat- form, inis charge placement the warehouse and directs of trucks Other yard against loading platform. “checkers”, known as see that the various mate- employees, *4 in rials called for the documents are loaded or un- shipping trucks, who driven by employees operate electrically loaded warehouse, and their The material helpers. consisting corks, articles, bottle and similar is stored in cartons tops skids, piled up” and lateral aisles “high longitudinal about feet wide between. No is eight smoking permitted warehouse, the yard, on the the loading platform, or and However, to that signs effect are posted. smoking per- mitted in warehouse, a room the cellar of the at the foot there is a filled with stairway, large receptacle a which To to this room extinguishing cigarettes. get
sand the office the it is and loading platform necessary go past of about one hun- pass warehouse for distance through dred sixty feet. the ware-
On the arrived at day question, plaintiff by house clerk. He was told reported shipping it time his truck clerk that would be some before shipping it through could be to “take He went easy”. loaded and room as he often done before. smoking warehouse to had minutes, After fifteen he was return- there for about smoking struck and injured the warehouse when he was ing through along fork lift truck that was backed by being loaded the truck nor the Neither operator aisle. intersecting the collision. prior saw each other plaintiff room on per- Kane testified that he had used the He of it six or first learned haps thirty previous occasions. him go one of the checkers told seven when years ago there, two months down not to smoke elsewhere. About accident, loading to smoke on the plat- before the he started in the cellar and form checker him to down go and a told habitually of the other truckers smoke. He testified that many lift truck testified The of the fork operator used the room. room, but that truckers used the knew that the company. of the employees maintained for the use the smoking testified of the shipping department The foreman and myself. the Fire Marshal up by room was set “something galavanting that our were employees the fact recognized We money providing and we could save place all around not” provided It was “absolutely an area for them.” in” “some sneak He had seen helpers. truckers and visiting back The checkers them out”. right and he “chased If truckers the room. them the use of to offer authority smoke, company off go were supposed wanted to premises. sufficiency legal question does not Biggs Cf. jury question. present
evidence of negligence
that on
It contends
157 censee, whom the to abstain company duty, except owed or thus turns from wilful wanton misconduct. case If the status of the at the time of his upon plaintiff injury. it there was an invitee is conceded that was evidence hand, him. the other if the negligence striking plaintiff On licensee, was has not only appellee is conceded that made li- out a case. It is well that a Maryland settled licensee, that, censor if owes no to a aware of duty except him or presence, licensor must not injure wilfully Co., him. entrap Peregoy v. Western Md. R. R. 203, 202 Md. 207, and cases cited. It was there “A licensee said that is one privileged enter another’s land virtue of by possessor’s * * * consent, for the An licensee’s own invitee purposes. business visitor is one remain invited or enter or permitted upon land for a to the busi- purpose connected with or related Buettner, ness of the occupant.” also Austin v. Md. See Restatement, Torts, 61, et seq., and defining 80, 332, & § visitor”, Restatement, “business the term as preferred * * * one permitted “invited or enter for a or remain purpose directly or indirectly connected with business deal- between ings them.” In Carroll Spencer, 387, 204 Md. it was held that a child in a house under con- playing struction, watchman, whose presence was known to the not an invitee. It was said that is not “Acquiescence invita- tion, most, and at changes status of the to that trespasser licensee, of bare to whom the owner owes no greater duty than to a trespasser.” also Jackson v. Penna. R. See 176 noted Carroll case that 1.
has followed rule, what is known as the Massachusetts which denies that an owner or occupier duty negli- owes a avoid gent to a injury trespasser or licensee whose is presence known, rather than the Re- Michigan by rule favored statement.
Smoking very widespread The plaintiff clearly habit. came on the premises of the defendant for business purposes in which each had an party interest. The was re- quired to wait on the defendant’s as a matter defendant, and, indeed, convenience to the he was expressly told to “take it easy” by been person charge, subordinates, occasions,
told use that previous part *6 those who adapted reserved for the use of For assume that present may wanted smoke. we purposes there no lack express was invitation because of the alleged subordinates, of in be the well authority although might an in- contended that had to extend they apparent authority Co., vitation. In Banks 212 Montgomery v. Ward & 43, it was said: “It is held that an cannot generally employer for the acts of his limitations escape liability agent by placing known to him nor authority on his not others with dealing inferable from the nature of his properly employment. Lister Allen, assume, deciding, Md. 543.” We also without the law the mere of sub- acquiescence under ordinates, more, in the the place plaintiff without would distinction, licensee, as there so far status of a and that concerned, between and passive licensee is active liability the defendant. part of negligence in- an was not appellee The contends because, the time of his injury, business visitor at vitee or room, for he not acting in was smoking to and from going benefit, interest of business promoting any their mutual or or owner, his solely personal pleasure but for own acting that at least one of fact This overlooks argument benefit. to reduce room was furnishing purposes to em- hazard, that would not only fire a purpose apply lawfully upon premises. but to other persons ployees he en- a business visitor when unquestionably appellee during not lose his status he would tered the gate, an area into unless ventured waiting, period enforced Cour- employees. reserved obviously or clearly that was customers, regular employees and accommodation tesy advantage. business unrelated to is not goods, to receive sent statement the foreman’s have disbelieved well might The jury the street out into go supposed were employees that such it is provided, room was waiting no other to smoke. Since the company’s it was to inference unreasonable not an cellar, where use the visitors waiting to have interest and would not employees, of other way be would not areas. forbidden smoke be tempted theory rely, the benefit proceed upon The cases that instances, indirect benefits. rather remote and many upon Thus, Buettner, en- the business visitor supra, Austin v. tavern, his em- solicit business for tered premises, institution, whom the defendant ployer, banking with R.Md. R. had no In v. Western previous dealings. Peregoy while supra, yard a railroad injured material loading employer (a patron stored there free the consent of the railroad) although charge railroad. Other cases accord the status of invitee to persons goods to retrieve returning purchased, reentering premises an article left of lia- theory behind. But there is another bility for on mutual benefit negligence that does not depend at all. The cases all that an recognize may invitation express or implied, and there are cases which an many *7 circumstances, invitation has been such as cus- implied from tom, the use, acquiescence of the in habitual the ap- owner parent out of use holding premises a the particular by public, or in simply the or of the general arrangement design premises.
This is theory recent com- strongly supported by the most discussion, Prosser, mentators on the subject. For a full see 78, Torts James, (2d Ed.), Harper & Torts Law § of (1956 Ed.), 27.12. out that the pointed test of mutual § benefit, in form, its extended in makes liability depend many visitor, instances upon undisclosed intention of a sub- test, jective whereas the other in theory is that it objective stresses custom and the appearance of It is things. said that Restatement, Torts, benefit in pecuniary stressed §§ 332, 343, Bohlen, was a minority view by advocated its dis- tinguished Prosser, reporter. supra (p. 456), says: “The Restatement the second in- notwithstanding, theory [implied courts, is now accepted by great majority vitation] and many visitors from presence whose no shadow of pe- cuniary benefit is found are held to be invitees.” In with the dealing effect, area of invitation he in (p. 458), says, that liability depends upon evidence of encouragement to go to the unusual place. theory implied invitation has been in recognized rested, cases, been
number of have although in at least in circumstances part, upon indicating whole or 467, Bass, In Kalus v. some economic benefit. be an tenant was held to prospective which the child of a Court, Urner, dis- by implication, Judge invitee 535, Co., Benson v. Baltimore Traction 77 Md. tinguished the com- students fell into a vat on party where one of per- while a tour of making inspection by pany’s premises obtained, asked and on the ground mission previously or by any was not manner invited induced any the visit this He cited with company. approval the defendant act of 307, Phillips 55 N. 315: Library passage L. J. “ in the fact that the person 'The of the consists liability gist own, on motives of his to which merely not act injured did contributed, but that he occupier or act or owner sign he led acts or conduct by because was premises entered were to believe that occupier owner or them, he used in the manner which intended to be used in, but was only acquiesced that such use was not or way for which the design with the intention or accordance ” allowed to be used.’ or adapted prepared place and New- Colony v. Old Sweeny To the same effect he cited In case Mass. 372. Company, Railroad port is this: : “The true distinction 374) said Bigelow, J., (p. C. in cer- occupier an owner or acquiescence by a mere passive if but he no liability; tain use of his land others involves by to enter on and induces implication persons directly assumes an thereby obligation over pass premises, use, condition, and for a suitable for such *8 a safe person he is liable to a damages this obligation breach of thereby.” injured Md., in Burke D. & Va. v. applied
The
was
theory
same
156,
was struck
a
R.
Md.
which
134
he
gone
wharf where
had
truck on
steamboat
baggage
a news-
fish,
intention of buying
undisclosed
im-
to the dock.
Invitation was
a steamer moored
paper
allowed
company
customarily
the fact that
plied
dock,
fish on- the
and to
than
passengers
other
persons
at the store
steamer to make purchases
board the excursion
maintained thereon for the convenience of
In
passengers.
Hines,
621,
Jackson v.
137 Md.
who came to a
plaintiff,
railway
relative,
and steamboat
terminal
to meet
in
jured on a walkway which the defendant claimed was for
the use of employees only, although no notices to that effect
were
posted.
was held that
invitation
could
implied
from the appearance of the
and its
walkway
use
customary
by passengers and
Keene,
others.
also Pellicot v.
See
135,
Md.
where recovery was denied
child
to the
of a cus
tomer who went
store,
behind a counter in a
in the absence
of any evidence of a custom
such use.
In
permitting
Elkton
Auto
Corporation
Sales
v.
Maryland,
162 was or to an implied inducement invitation. There support a Spencer, also absence of inducement in Carroll v. complete supra. dealing line of in other appears same distinction cases or are persons injured situations where customers other or on them.
on their
to
from toilets
visited
way
out
holding
is found where there is
Liability
evidence
use,
an
or the
are such as to
public
appearances
support
invitation, but
it is made clear
inference of
not where
implied
there
that the
or
employees only,
user
use
available
cases
negative any
Among many
inducement.
facts
Liquor
see O’Brien
Restaurant &
on the
v. Harvard
subject,
Co.,
2d
v. Hayes-Bickford
N.
658 (Mass.);
38
E.
Lerner
Rafala,
Dickau
51
774
v.
System,
(Mass.);
N.
2d
Lunch
E.
Weathers,
104
The final is whether court question that the first correctly question The court stated jury. the time He at plaintiff injury. the status one, he was were “two possibilities: stated that there two, was an that he invitee.” trespasser; in- not ask for any noted that defendant did may be possibility, as to third struction defendant prayers The sixth and seventh licensee. that if the purpose an instruction simply plaintiff's asked for for his own benefit the warehouse was through going defendant, convenience, benefit then not to the any *10 be- These refused could not recover. were prayers properly cause did not cover the possibility implied invitatiou the by charge relied on the and the to oro plaintiff, objection this was there no> ground properly Again, overruled. was objection charge to the on the that it did not instruct ground the that plaintiff intermediate the was a possibility licensee. The which the was assumption on case was that the tried duty of care owed to a licensee is than higher no that owed to a that trespasser, and could not recover unless he was Jn an view of the complete invitee. absence of objec- tion, the cannot complain now of the oversimplifica- tion. “If court find that Kane charged; you Mr. knew that the smoking room for employees and knew only he had * * * there, he going business down was a trespasser.
in order be an person to invitee a must be invited come onto the That mean premises. doesn’t that someone must him give it; card engraved with an invitation on but that his actions by general arrangements person owning the premises give the person should involved the right understand he expected to come onto them.” After summarizing testimony, court further said: “If you knew, believe Mr. Kane or had reason believe that not room, should down to go then he was a If trespasser. you believe that Mr. Kane apparently had authority, permission, smoke, go down there then will find you that he was an invitee.” The defendant this objected to part charge only on ground that it told jury “that the plaintiff had to know he was a trespasser order to be a trespasser, and that it is unnecessary for him to know it.” But in the remarks just the court quoted modified and corrected his first broad state ment. We have often said that a charge must be considered whole, aas and that verbal slips, or isolated phrases will not be condemned unless clearly prejudicial. Cf. West v. Belle 244, 250; Isle Cab Kilner, Md. Rabinovitz v. 455, 464; Pecora, Texas Company 208 Md. 298. “Reason to believe” would deny recovery even in the ab further, sence knowledge, recovery limited to invitation the sense “that by his actions ar- general rangements the person should owning give person involved understand he is right expected to come onto them.” We think the charge as a fairly whole presented the issue of implied invitation from all circum- stances, and the was not misled jury alleged incon- in the sistency on the charge point knowledge.
Judgment with costs. affirmed, filed J., dissenting the following opinion: Prescott, my It is with sincere that I am unable to regret agree If learned in this case. opinion colleagues majority *11 of time analysis more and careful thorough would a permit, but, case our with the presented; present differences could be load, that time is not available. so will opinion, they
The facts in the majority are stated dis- A of them will not be careful examination repeated. and, my judgment certainly meagre; close that they an a of upon finding insufficient which to base they are totally ap- of the to use that appellee portion “implied invitation” room as designated smoking it had that pellant’s premises supplemented stated should be for The employees. its facts in a room permitted “smoking the statement that by saying this that should also state the warehouse” cellar of the the its by appellant employees; was granted permission left, to the truck appellee the that and, the distance feet, the distance 160 while approximately room is prop- him off appellant’s have taken that would the gate feet, feet, only where a difference only erty was prin- I have no the quarrel will. smoked at have could invitation stated “implied” relative law ciples of but, application is with it opinion; majority facts law- Every of law. principles those case to particular of this inferences, implications and presumptions that knows yer law, but places valuable proper their have is, is who of who The question too far. carried can be belong upon premises one is when not, “invitee” an judicial decisions. many subject another, been has "eco- called one applied, There are two tests currently The test. test, nomic benefit” the other the “invitation” obliga- that affirmative assumption first proceeds upon some con- in return for on only tions are imposed people that “invi- deny not benefit. The other does sideration or benefit, does not but it economic tation” be based may upon on the fact It bases its foundation that as essential. regard other or premises of the arrangement that the owner by were that the premises has led the entrant to believe conduct which the purpose intended to be used visitors 2). foot-note pursuing. (See entrant was I have exhausted the subject, I not completely While have the “economic” case in where found no previous is cited and none disregarded;1 has been totally theory herein not warrant but the facts do the majority opinion; either under “invitee” appellee finding business private The is a named theories. above concern; grocery such as public place does not conduct store, the public gen- or a where beauty shop, a restaurant It had set aside for the use of employees is invited. erally unques- appellee in the basement to smoke. a space first appellant’s place when he arrived at an invitee tionably But, the authorities invitee agree all of of business. invitation”, which is that part to the “area of is limited owner to him open that the has thrown parts him which makes an invitee. Prosser purpose Waters, 458; Torts, Sleeprite Corp. p. 2nd Gordon Ed. *12 354, I 168 846. am unable to discover where 165 A. Md. benefit to discloses “economic” whatsoever any the evidence left the truck to to the appellee go when appellant business, where the was on appellee any room or di- smoking indirect, and the also is appellant; testimony rect or of in or encouragement inducement totally lacking showing any 68, Buettner, 61, as Austin v. 211 Md. 1. This said as late Court banking think 124 A. 793. “We that connections and services 2d potential advantage are actual or business or benefit”. of evident recognized previously in This had been the test in this obviously application type of It no of class cases. has to the cases mentioned in foot-note 2. 166
offered to the remainder by appellee enter ex- of its that the premises. appellee possibly most could from the that he a licensee. pect evidence was I like to comment on one phase opinion. would other of theory negligence It states “there is another of liability * * * * * “* mutual not benefit at all” depend does is now theory (invitation test) accepted by the second courts, and great of visitors whose majority many benefit is are presence shadow of found pecuniary law, I to be statement of the agree, held invitees.” With this cases, in outlined only application proper by but as who quoted.2 authors further states: “The cases that opinion
The majority instances, in theory rely, many the benefit proceed upon benefits.”; it cites there- rather remote and indirect and upon Buettner, 61, 793, 124 A. 2d and under Austin v. Md. R. R. 2d Md. 95 A. Peregoy Western as insofar the Buettner case 867. This statement is accurate concerned, the definition of in- repeated but that case is in the present case) given followed vitee is not (which case, Brune’s words that defi- Judge and Chief Peregoy are used par. “in much the same terms as nition was Restatement, in the And the Buettner opinion Torts”.3 Torts, p. quotation is from Prosser on 456. is taken 2. This immediately by is the class of invitees intended followed lectures, attending public persons free “The list has included cover: spectators college reunions; meetings, free in- and services chureh amusement; rea- public places enter of those who vited premises, buying something expectation on the not sold sonable given something response to be or come advertisements public making long array away; use and a of members parks swimming pools, libraries, playgrounds, com- municipal and centers, golf courses, community stations, wharves, and state fort should property.” this class There is little doubt federal invitees, author, but, no other that I have as this be included private read, suggestion con- any business it includes a make its cellar. room in cern with Judge Bruñe, of an invitee the definition 3. As stated Chief case, unques- case, repeated Peregoy in the Buettner majority Restatement, tionably par. Yet the Torts. taken from 332.
167 1. in foot-note quoted the words careful to out point case was quotation the above however, reconcile is, difficult It of the use case In that Peregoy the facts case. is This 22 years. the railroad had continued property storage The about the benefit. what the said opinion property casual use of “not a mere material was * * * land on the these articles storing sole use of Pen-Mar * * It promoted *. advantage its the railroad was to * * * mutuality The carrier. business for this freight facts.” (emphasis undisputed from the palpable is benefits mention, cases, numerous to too Maryland Other supplied) been test has benefit “economic” cited where may holding that supports been named but none has applied, made majority. v. Old Sweeny also opinion quotes
The majority 372, Mass. Company, Railroad 92 Newport Colony invitations. of implied case on the leading question which is a to the abstract, support lends some quotation, This it relates but, to which the facts when majority holding; The railroad com- known, little, thereto. if anything adds on its tracks over grade crossing a private established pany years, use it for public permitted its property. crossing. in safely the public there to assist placed flagman signaling wrongfully flagman As a result of the held accountable tracks, company the railroad onto the and induce- encouragement plaintiff’s injury. for the an im- make the plaintiff case so as to ment held out different, in from a opinion, private my was quite invitee plied its employees area for with a business concern cellar. one more case cited individually only
I refer shall Corporation Auto State Sales majority opinion: Elkton case, the In that 4th). C. A. (C. 53 F. 2d Maryland, to the go jury. benefit sufficient economic established facts par. on, quotes saying that a mi- opinion, as Prosser later overruling the Buettner view, and, specifically nority without Peregoy (as previous decisions cases as all well point)’ fails to follow them. *14 in was decided I yet, have not it nor found cited in since, followed any Maryland decision the including Buettner and Peregoy cases. in opinion one paragraph cites seven cases out-of-State case, In implied invitees. each the defendants conducted a invited,
business to which the in public general such as restaurateurs, stores, beauty shops, grocery etc. In none of far, far, them does the on the holding facts so go nor so nearly fact, as the in ruling the case. In present little they have the to case at bar. analogy that,
There is one in me, the ex- paragraph opinion to unfortunate it tremely though even be obiter dictum. While it makes no direct that there holding was an express invitation reason of the statement that two checkers told allegedly that he appellee could use the room it does say: “* * * it well be might contended they (the checkers) had apparent authority extend invitation.” The testi- mony specifically discloses that the checkers such and the authority appellee testified that he knew what checkers’ duties were. The then opinion from quotes Md., Banks in 212 case wherein it is stated: “It is held gen- that an erally cannot employer escape for the acts of liability his agent by limitations on placing not known authority to others with him nor dealing properly inferable case, nature his employment.” In that (Italics supplied.) we were with the dealing apparent authority general of a manager large store institute criminal department pro- case, ceedings; this to the majority opinion refers checker, it apparent of a whose sole was to authority duty see that “the various materials called for shipping arq documents loaded or unloaded To inti- by employees”. mate that the be appellant would for responsible apparent of such an entire busi- authority employee throw its open ness establishment invitation seems to me to contrary to all authority reason and and to completely ignore above underscored of the Banks portion opinion.
In the Court of will hear from this my judgment, Appeals future, prius statement times as well as nisi many State, it where will be as au- throughout quoted Courts valua- very make menial subordinates to most thority or masters. their principals on behalf of ble concessions and followed conclude, announced I the principle To think the type intended to cover holding the majority 2 and the Sweeny are foot-note such as mentioned cases case, in this with case, dealing not to such as we facts base- its e., with a place i. business corporation private employees. smoking purposes ment aside for set I think Furthermore, colleagues, all my due deference sub- decisions on to the many does violence insure business and those ject. industry, It seems sta- reasonable upon rely are entitled liability against *15 reasonable cer- know with should in the law. bility They for which responsible, for which they tainty op- a better would permit This responsible. are not involved and liabilities the costs appraise portunity their affairs. conduct logical normal B should have prayer demurrer appellant’s opinion, In my granted. been v. THURMAN al.
HUGHES et Term, 1956.] [No. October