Gilliland v. Bondurant

do hold the broken .window. What we when the future damage owner of house for the done settled with the window, picture. they dropped After this settle- out made, in its the window unsafe con- ment was the maintenance of original breaking owner, window was dition and not injury. proximate cause of injured that she would not have been Plaintiff contends but window, breaking breaking- of the -that reason the injury. breaking actual proximate caus'd of her., injured injure because of the window She. unsafe .did the window after it broken. Plaintiff’s condition of contention fact proximate overlooks that when defendants cause settled - breaking window, the owner of the house for the with in which window was condition thereafter maintained was no con- cern of theirs. many carefully examined cases plain- all. cited We have of; contrary none them' hold

tiff find conclusion we have reached. awarding judgment reasons

For the stated the a new trial is af- All firmed and cause remanded. concur.

Josephine D. Bondurant, D. Bon- Sr., Gilliland James James doing Jr., and W. Bondurant, P. business under

durant, Appellants. firm trade name of Palace Bakery, S. W. (2d) 679. One, April 20,

Division 1933. Ellison, Kavanaugh Ellison, Rieger It. E. & Andrew

M 11.

Rieger appellants. Campbell Campbell D. respondent.

A. and John HYDE, damages personal injuries. C. This a suit for petition contained two counts. The first count was at an action personal injuries law for which plaintiff during sustained minority alleged as the negligence. result of defendants’ The second equity count is a suit in judgment, to set aside a rendered for such injuries during plaintiff’s minority, in a suit which her father was named as her next friend. The second count was first tried trial court entered setting judgment.

decree aside the former Thereafter, pro the court try ceeded to the action law at count, stated first judgment rendered a in plaintiff’s favor. Defendants appealed City to the Court Appeals Kansas trial court’s decree judgment One affirmed. judges, however, dissented ground opinion affirming in judgment on injuries plaintiff’s first count for in conflict with the decision of this court in Gandy v. St. Louis & Ry. San Co., Francisco 329 459, (2d) 634, 44 Mo. S. W. v. Kitchen Mfg. Schlueter Co., 1179, (2d) Mo. 20 S. W. 776. The case was accordingly certified provisions here under of Section 6 of the Amendment of 1884 of (Mo. 51 S. W. App.), v. Bondurant the Constitution. [Gilliland (2d) 559.] City Kansas Court here, in

Defendants contend did decree rendered plaintiff was Appeals, of not entitled brought setting judgment in suit aside the the trial court we minority. Upon proposition, this during her next friend her thereof adopt complete facts and the able decision statement of Appeals of opinion City majority in Kansas Court by the follows: judgment suit a rendered a

“The second is to set aside count father, friend, against brought by as her next injury. of damages account for the sustained on ground the second count on “A filed to demurrer was ‘ granting for the not facts sufficient that the same-did state ‘plaintiff point demurrer is that prayed,’ the of the relief therein judgment case or that the plead had a meritorious not that she contain not such inadequate.’ doubt the second count does No allegations allegations many -words; and statement in so but the appear matters made therein are such that the-above-mentioned facts support cited in law. Two cases are as matter therefrom defective, namely, fatally v. charge count is Greenard that the City, 45, Kansas 69 Mo. Isaacson, S. W. and Sauer judg sought enjoin the enforcement of first of which it was it, enjoin procuring and in the other to ment of fraud in because judgment cases no for taxes. But these collection of vastly here, with situations different application since deal On facts count. the face said second the one involved wrong nothing cases, appeared to be cited in the'two stated aside, sought so judgments to be set but -not improper bar, alleged, for the facts here in said count of case at second true, They spoke only not showed fraud in the if themselves. for wholly latter procurement judgment, but also that young girl through inadequate lost her arm in a case where settling, pittance $500, mere negligence for a defendants’ arm) only (for but also her case the loss of not her own father’s facts, stated, which were of his child’s services. These showed loss inadequacy impressively and more in terms far louder fraud and Besides, statement to that effect could have done. than formal ‘repleads allegations restates as true all count the second of’ the first count. overruling charge demurrer to the evidence

“The error ‘Assignment appear defendants’ count does under the second argued Errors,’ point discussed but as the later (Since it. pass prefer count is an brief, to consider we finding court erred in assignment ‘the case, the equity petition’ is sufficient to raise second count on the discussed.) However, fail to see wherein evi- we questions count, In the second sufficient. the evidence under not dence defendants a settle- plaintiff’s father reached that it appears damages May, in accordance there- for in claim ment ‘agreed judgment’ plaintiff’s was entered favor with, an being girl young fif- plaintiff, that then a between It seems $500. request of defendants’ attor- years at the then old, sixteen teen and appointment her next request father as signed a for the neys, bring that order to friend, request which last states suit But, (being trial of the second count said her behalf. judgment), plaintiff that testified she under- set aside said action to signed papers father that the to be in order to her were stood from against defendants; her, that his, not suit she did not settle signed reading papers signed; papers that she recollect attorneys (not of which drawn defendants’ to, all referred however) they office, having pre- their present attorneys, their being stated, office. pared prior to.her called them to said As them represent attorneys now attorneys were same who these Plaintiff, mother, signed receipts her father and her also defendants. reciting payment $500 father as friend releases her next action, of her also cause of cause action settlement against might express mother have defendants. No father plaintiff were made as to the contents of representations papers attorneys needed; for defendants. There then were none her, a child with no one to or at least plaintiff was advise none who her, prepared who advise and those suit did not to take expressly telling they her what explaining the hazard keep merely was to her; all had to do silent, them attorneys thereupon Defendants’ then filed against did. the suit clients) (their plaintiff by own behalf of her next appearance thereto, defendants entered friend; and, without any testimony, judgment hearing of was rendered in favor' of judge The who $500. rendered testified as witness count, and stated that no one on the trial second addressed except (then) attorneys defendants, he, the court and that judge, understanding and acted understood that judg- ‘agreed judgment;’ was an plaintiff’s entered ment father was he, witness, present, but did not think the father said anything. under said shows The evidence second count plain- present. proceeding tiff The whole did not was not take minutes. five immediately judgment paid, $500 $500 The and the was turned father, never, any time, over to the at received evidence, The any part of it. under second herein, count plaintiff’s father was paralysis showed that afflicted with agitans also enough his mind a certain that ‘affects extent but not but he knew doing.’ (then) attorneys what One of defendants’ he testified given; was sworn nor suit, in that no witness evidence herein that* agreed judge, saying it was statement of facts made a he written evidence shows up.’ ‘as it was judgment entered judgment any her favor knew that was in plaintiff never adversary proceeding. appeared on both sides of an counsel same brought. Arrington, Hence, [Arrington behalf was in her v. no suit urged it is now that no evidence was introduced C. But 116 N. 170.] prove plaintiff a meritorious case. second count had under the 332; Co., 291 236 34, v. Mo. S. W. Robison Floesch Const. See Gurley (Mo. App.), 895, 259 W. in v. Transit Co. S. each St. Louis judgment, trial the count aside cases there was a to set of which plaintiff show made therein to a no effort was but Gurley forth, case case. In the is set evidence meritorious actually present court, slight in plaintiff infant had a being (but know) in fact not that a suit opportunity to know did held, judgment was nevertheless, court that the brought. But the knpw fraudulent, plaintiff being inherently not did what was judicial investigation no or determination and there was done issues. bar, in trial of count in plain- the second the case at “Moreover* inquired they go as to counsel of the court whether

tiff’s should replied, ‘Oh, no, merits of the case. The court I wasn’t into trying don’t think case, the merits of the counsel had such understanding that, they?’ did Defendants’ replied, counsel get said, know it.’ ‘Don’t where would Plaintiff’s counsel then go ‘I will not into the merits of the case.’ The court: ‘No.’ ‘‘However, case, it was shown there was merit in petition for the by against themselves, written and filed the case judgment, $500 in evidence, introduced in the trial under the aside; count it second to set defendants accused themselves having wrongfully caused arm; lose her . judgment rendered therein prepared had also upheld the allegations petition. of the said

“Besides, attorneys fact that the defendants’ then prepared case, papers including all the in the judgment, the form of the only attorneys representing the case and both sides which other, were adverse to each is sufficient render judgment $500 setting void and calls for it aside. Wyatt, E. v. 23 S. [Marcom Grayson, 169; Walker v. 10 51; S. E. Parker Parker, 99 Ala. 239; Boone, 944, In 83 re Fed. 957.]” may To this it be added: The (by settlement agreed an judgment), by of a suit for represented by infant next friend counsel, may permitted own his be to stand where such a counsel good safeguarding, interest, -is faith the best of his ability, the (even of his client immature then»it is the duty court’s protect the infant’s judicially interest ascertaining facts, through

88S them); hearing' but all authorities and consideration are real holding judgment per in such a case will no unanimous when, aside, upon a direct attack a suit to set it mitted to stand fact, pretended infant had no counsel that the is shown that the adversary. brought by attorneys representing the suit the infant was 34, 332, Co., Mo. S. W. v. Floesch Construction [R obison (Ga.), note, 1249; Atlantic Steel 1239, L. R. Carroll v. Co. 20 A. case, attorneys, 660, note,

106 E. R. In S. A. L. 667.] brought suit, ad directed the insurance who infant’s concluding provide, juster employed them to as a who means through legal (as case, rights said in Robison plaintiff’s form transaction, supra), to conceal real the con “a screen contrived defendant, release between tract of settlement and right having purpose for its the foreclosure to disaffirm age upon reaching discretion, receipt . . ma . fact, Such a suit ture counsel.” suit is and as a screen it only screen, light disappears which in smoke the of the true facts searching eyes prevent equity and fails to a court of of from clear seeing, ly seeing equity nothing transaction. So will the real declare it proceed. suit and allow real to setting judgment

After the court entered its decree aside the prayed plaintiff’s suit for in (which the former as second count affirm), parties now following decree we entered into stipula concerning plaintiff’s tion trial of first count: parties, plaintiff defendants, agree ‘‘The and the cause of action plaintiff1’s petition in the first count of stated shall be sub jury court, mitted to the waived. If at the close of the ease the opinion plaintiff has court of the a case entitling made her jury jury same; to submitted to a if a trying case is, plaintiff good against if has made a case peremptory as defendants, instruction to find for the then and event plaintiff court shall render in favor of $4500. for sum of If opinion plaintiff court is that the has good of the not made a case instruction, against judgment peremptory then shall be entered for the defendants. agreed that party, is,

‘‘It- is further either plaintiff or defend- ants, judgment may appeal court, from the the same as if agreement nothing this agreement been made and in this shall right be a waiver of construed to the defendant’s to assert the ex- ceptions previously made cause the trial of the second and count, overruling to the action the court defendant’s de- petition murrer to the second amended in overruling and defend- part ant’s motion to strike said second peti- amended tion, overruling require defendant’s plaintiff and motion to elect.” right damages for of her the loss count was first Plaintiff’s plain- when crushing by defendants operated machine in an ice arm defend- high class, school went of a members tiff, other with creamery. bakery and operation of their see the premises ants’ ‘‘ with went at the invitation alleged class that the Plaintiff alleged defendants;” further knowledge permission and afore- years immediately preceding the continuously several “that public classes students of large number of injury, a

said invitation Kirksville, . . . at did city of said schools defendants, go said de- knowledge consent with machin- aforesaid at and observe the to look fendants’ establishment and, there, under operated in which the same ery manner machinery and defendants, and observe said at, look the direction of operated.” same manner in re- ice crusher and the defendants’ described petition Plaintiff’s charged negligence as follows: therein; then volving prongs knew, herein said defendants times “That at all known part and would have could ordinary care on exercise picking up to be members of her class and other plaintiff that for place crushed ice where said pieces of with their hands .from aforesaid, was crushing machine said deposited by ice same arm, hazardous, and liable result extremely dangerous and such members of her plaintiff or other clothing thereon of hand pulled into prongs, arm and hand being caught said and the class in said machine. crushed knowledge danger notwithstanding said hazard “That class, negligently members and the other warn or the other members of her carelessly failed them, or them the existence danger, or cither advise class of said of of any danger picking up incident said prongs said of of of during plaintiff was in ice; that all the time said pieces crushed of of machinery said manner at, observing and the looking and basement engaged operated aforesaid, in which defendants showing demonstrating plain- and in and machinery said operating operated manner in which the same and class and her said tiff produced by product manufactured defendants.” ‘‘ alleged did, that she and others the class with Plaintiff further defendants, pick up pieces with their hands knowledge place deposited;” where the same from the ice said crushed of said prongs, any of the existence or of not know that “she ’’ caught being by any danger prongs; said danger therefrom or ‘ ‘ engaged operating demonstrating were still and while machinery operated,” picked up said in which manner caught ice; by arm “was prongs and that her piece another forced into said machine.” pulled and and thus general answer, denial, specifically in addition to a Defendants’

891 defendants, alleged that the visit was for any by invitation denied was warned plaintiff; benefit the exclusive contributory alleged negligence machinery; danger moving and of all part. on her concerning determination stipulation

Under only question really damages injuries, there is one right for her is, here, trial court should whether or not the considered to be only question was the evidence. This have sustained demurrer to the appellate 'court. Both and for either the trial court or the what show evidence to defendants introduced considerable Although conflicting. This claimed were the true facts. evidence court, defendants, not, trial argued by is we nor was the here, are credibility conflict, weight with concerned nor the must be question this case rule, evidence. The under which the sole evidence, plain- determined, is that whether offered “the whole defendants, plaintiff given the bene- tiff or must be searched and the tending all favorable to fit of facts circumstances every inference support theory of the case and reasonable therefrom, part on the of and favorable deducible while evidence defendants, [Gray excluded.” contradicted, which is must be see, also, Co., (2d) 809; Columbia Terminals Mo. S. W. 1224, 55 W. Armstrong Co., 331 S. v. Mobile & Ohio Mo. Railroad City 390, 45 (2d) 460; Co., Grubbs Serv. Mo. v. Kansas Pub. (2d)W.

S. 71.] will, therefore, we think We state the facts which undertake to evidence, oper light, in this tends to show. Defendants viewed creamery, doing ated and retail business bakery wholesale bread, plant counties, over several butter. Their ice cream and handling machinery equipped up-to-date appliances with a, products sanitary They widely their manner. advertised products Inspection their touched hands. were not human making appliances products, their and their methods of their might prospective customers, encouraged. who For those purpose, they sign stating “Inspection had on their window a students, Invited.” It was or six shown that classes of about five schools, year, high grade classes each from the school Kirksville College from the Teachers State American School of Os teopatliy, annually through also taken located -were Kirksville. plant appliances

defendants’ shown their methods. a reasonable inference from that this was of defend the evidence one advertising through products; ants’ methods of it was done arrangements there; bring with the school authorities classes they brought part were in connection with as a there work, curiosity their school part out of mere on the of the children go to by appointment watch the wheels came ’round. These classes object subject “generally view, had first some on one making.” Samples making cream another, be either batter or ice then ap- given classes. When an frequently cream to these ice were employees about pointment made, was defendants instructed for, up coming specially to clean the demonstration class was the machinery readiness, as little place things the and have give Mr. running possible, of their work. and to demonstrations Pierson, supervised depart- and butter who defendants’ ice cream ment, a class them like teacher would said he “instructed students school.” annually classes,

One of the came to receive instruction handling of butter and establishment learn about the defendants’ girls’ dairy products commercial the class scale, other on a was High Plaintiff, aas Kirksville School. household economics of the day on class, member of this went defendants’ the establishment injured. the was An had been the teacher of appointment made p. go class to :30 m. Plaintiff first received information at concerning going place from to defendants’ of business the teacher building. the class assembled at school Plaintiff after had the years sophomore in at fifteen and five months old the time and a. twenty girls high eighteen the school. were between There Upon plant, class. one of their arrival at defendants’ the de- through bakery upper took floor fendants them on the and showed baked, They mixed, wrapped. them how the went bread was products dairy the basement where the were handled were storage first taken to the room and instructed cold defendants’ handling milk From foreman as to and cream. cold room, churn, storage operated by which was were taken to room, power. storage churn from cold electric To reach this southwesterly twenty went about feet in direction. About churn, storage or twelve feet the north ten nearer cold room, crushing ice machine. an direct route from cold The storage them room to churn took within ten feet of ice Upon foundation, a concrete between the churn crusher. separators power driven crusher were Also ice clarifier. switch, the churn and ice crusher was a between which turned operated by mill power, a lever “like an old saw slide.” When on, power operated turned it revolved the shaft which both ice-crushing churn. possible and the It to stop machine churn, turning power, off stop crusher, without but to the ice operated shaft power which to be had turned off. square standing up crusher affair ice was a like coffee mill high. one-half to three and one-half feet two and It fifty opening top up pounds which cakes to about on the ice They into placed. dropped down the middle the machine and except steel all crushed. had a solid case that there around along open out, bottom ice place the crushed come top of this The where taken out. grate in a furnace ashes are like a Inside eighteen above the floor. opening from fifteen to inches was cylinder threshing machine cylinder a was a round like steel case or were teeth something separator. There with a on it tube like cylinder the crusher which prongs in of bottom the inside prongs or carried teeth not visible the outside. These large pieces outside opening, front of the threw crushed ice to the deposited opening. When and small in the bottom of the ones crushed, piled up on the there was a considerable amount of ice it. opening gradually into The sloped floor in back front and looking prongs up teeth could under the not be seen without opening. lower thirteen one-half end of them were about The from the inches above floor and about eleven inches front thirty flywheel opening. There on the crusher about the side of inches; inches in four protruding diameter out in front about fly operated netting. belts shaft were encased wire cylinders wheel was on the same as on the inside of axle flywheel operating crusher when the belts crusher was moving. could be piece seen A been broken three-cornered had out something high front crusher, seven inches like six piece o.r seven inches across the corner. “Before that was broken out, caught by prongs one could not have been without those teeth they up reached in under the encasement.” Defendants’ foreman that fix piece order were to a new crusher so, they but never did light piece put but that have “a tin just light It brought across there. piece v7as of sheet iron down over space that clear across space, part. that the broken It was off when was hurt —rusted off—and had been for months six ’’ year. or a plaintiff’s When storage room, class went into the cold number girls picked up They opening ice in the of the ice crusher. pieces ate these picked of ice up they more when came back from the storage cold .room to the reasonably churn. inferable testimony from the that reaching Pierson saw members of this class into ice; the crusher so; had seen members other classes do expect had reason to class would members continue long to do so it. were near The class all stood around the churn opened while defendants’ foreman it for them into, explained look operation its power and started the to show operation. its machinery No running the basement been had dur- ing up their visit time. There conflict about some pile size of ice opening around the of the ice crusher and whether the ice dirty. outside the floor Plaintiff’s evi- was, however, dence picked and the up she pieces others small opening ice inside the only. of the machine Plaintiff said that a few caught minutes she before in the crusher looked at .she churn put foreman butter the churn saw defendants’ churn; motion; at the did not class leave when she observing .reached contents of churn caught. Her piece into ice another ice and crusher for had said she She amputated. arm was crushed that it to be so crusher, ice danger from the warning any

received no was that there was in motion picking in up it, know that ice from and did not attempted it. get piece when she from another of ice separate, distinct foreman, Defendants’ three Pierson, testified He occurred." ways and inconsistent he accident was employees who was corroborated another one defendants’ it. Plain- time, way in the stated basement at as to he the third examination, tiff direct and, upon called Pierson witness as a ma- only the other machine, asked him crushing the ice to describe instructing receiving chinery operation, and its custom classes, them. about school his instructions Upon the occurrence defendants’ told of cross-examination he follows: set; I raised

“I showed them was all the butter churn first—the says, I will throw Now, the lid and the butter. I showed them class, stepped here nobody switch in I over and never saw but the going, and (indicating) gear went to threw it in churn then as soon I I the scream gear threw the churn heard girl sitting position. around hunkered in a turned and here the I back run and turned the switch.” gave ivas version

Later he a second examined the court and as follows: basement During this time been had

“The .Court: operation neither ice at nor the churn not in until machine you some time the chum? operation wanted to show the Right. ice you stepped between the Court: Then Witness: The Right. machine and the churn threw on switch? Witness: Right. That started both The of them? Witness: Court: The : Court Now your turning how on the switch did close the time you plaintiff injured, learn that : cries ? or hear her Witness probably oh, Well minutes, very time.” three short or— Upon cross-examination, further his with former reference statement, written his account shut third was that he off n power injured. churn His returned before testimony was, then as follows: “Q. Tell you the court whether it is fact that had shut off power and that was simply operating the machine on its own momentum at the time this accident? A. It was on its own correct, Q. motion. right. Q. That’s isn’t it? A. That’s The power no, was not A. guess on at that time? power, electric The I not, right anyhow. Q. flywheel Now and these teeth would only only operated, operate thirty and did sec- revolve power A. onds off. has never after the shut been-timed— my something judgment.” like that in course, justified jury, believing would have been happened deciding ways, accident one of these three disregarding

that defendants’ foreman not know happened, how it entirely, testimony finding his about and basing of how it testimony. other happened on theory

Defendants filed elect a motion to on the pleaded count, petition two causes of in the action same one based on invitee, being being based on and one a licensee. The trial court overruled the motion and while the matter not seem does preserved to have been for review we think that the motion should say this, have been overruled. We think it is necessary because we us the theory plaintiff’s petition. to decide what is As here stated, language petition inabove is that and her years other classes former class and went to defendants’ es ‘! permission tablishment at the invitation and with the knowledge alleged This defendants.” not of is the alternative. The lesser (invitation). greater is (permission) included We hold that alleged charged negligence plaintiff a status of invitee and upon the (failure duty danger) to of defendants’ warn basis of to her an as therefore, ease must, upon invitee. Her stand or fall theory. that majority opinion City the Kansas The of of Appeals, Court after finding tending was to plaintiff evidence show that was an invitee, case, “in it said that this makes no difference plain whether duty tiff was invitee or the defendants’ licensee; a toward her theory The was the same.” court’s that there was evidence of Pierson negligence, namely, put “that negligently active the crusher knowing, being duty knowing motion- under the doing before ’’ picking so, plaintiff up that the act of ice. thought The court petition allegations enough that of the to broad cover this theory negligence that if not, petition even that should objection because defendants be treated as amended offered no to theory joined that sustaining trying evidence it “as if petition.” were in the opinion (we dissenting The took the correctly) view think recovery theory upon not that a this could be allowed because it con “a variance stituted fatal between evidence and allegation petition.” dissenting opinion says: This

“It that the evidence that the machine true up by started warning objection was admitted without without Pierson of de- object failure not fendant. The to does show that trying starting theory on the of the machine, the case without pleaded petition, warning, in the for there was no burden plaintiff, behalf object introduced in to evidence defendant to disproved pleaded Under the latest her case. decisions which object Court, merely defendant to the Supreme because failed to testimony above, ease considered here to cannot be referred theory pleaded petition having tried it on the as been warning about plaintiff was started without that the machine [Gandy into it. Louis-San insert had inserted her hand to St. (2d) 638; (Mo. Sup.), 634, 44 S. W. Kitchen v. Ry. Francisco Co. 1179, (2d) 323 Mo. 20 S. W. Mfg. Co., Schlueter 676.]” case both it was re- Gandy and the Kitchen held The case give an trial to instruction for a court authoriz- versible error negligence ing recovery upon theory pleaded. a a not This instructions, broadening point never issues case reached stipulation only question parties’ to be de- under the because not to whether or a demurrer the whole evidence termined was should a a pleads when cause of But action based be sustained. negligence failing nonfeasance, perform of defendants in on duty alleged invitee, her as an are to owe to warn a which her danger duty safety), (which is an affirmative use care for her proof entirely that the fundamental of an differ- it would seem to be misfeasance, duty, cause action based on the violation of the ent alleged licensee, wantonly they are owe her turning crusher injure power when defendants’ her em- by looking, have seen ployee saw, or could had her hand (a negative duty negligent not to commit a act which inside injure position peril), when would would be fatal proof. pleading 1062-64, C. J. secs. 633- variance between [45 735; 1143, 804-12, p. sec. J. sees. stipu- C. also 1187-91.] lation, to recover if was entitled she made a submissible undoubtedly produced meant ease, if she sufficient evidence alleged believed, if case in the first prove, petition, the count of her alleged might not case if some other she had to do again. over petition proceeds upon theory plaintiff the

Since if, a consideration of the invitee, upon was an whole evidence in the say can light plaintiff, to we most favorable there were suf- show, if true, plaintiff ficient circumstances to facts invitee, by City all the matters discussed then other the Kansas an liability concerning Appeals Court to only rely licensee eliminated. are Defendants upon if she was 26 (Md.), 973, Baltimore Traction Co. Atl. Benson v. to sustain their only a licensee. As position stated that case: appear subject have classified “The to under authorities these "(1) volunteers; (2) licensees or Bare heads, to-wit: those who expressly by invited or induced active conduct are premises; (3) go upon others, customers defendant to who occupier. largely Bach go on business with the must there case attending depend occurrence, circumstances it is be infrequently not found to difficult to whether in determine jured licensee, by is party premises mere or whether is a he implied occupier.” invitation or enticement of the owner or l. c. Atl. [26 975.]

Corpus Juris states the distinction between a and an license invitation thus: distingushed invitation

'“A license is from an in that licensee premises by only, by is on the sufferance and not virtue busi- with, any enticement, ness or contractual relation or allurement, or by, enter held occupant, inducement to out him the owner or but his merely purposes, interest own his own con- benefit, venience, pleasure.” 789-90, or C. J. sec. [45 194.] however, It, duty makes no difference the owner’s express implied. whether the invitation is or invitee J.C. [45 808, implied An invitation is sec. which is defined as “one 218.] by occupant held to extended reason of owner or doing be some thing permitting something fairly to be or done which indicates to entering entry person that his use property is consistent purposes with intentions or occupant, owner leads design use is in him to believe that the with accordance for which ’’ place is adapted mutuality to be allowed used of interest. 809, “However, it is C. J. sec. not sufficient that user [45 220.] intended, believed that the use but in occupy order to status invitee, show that he must some act or conduct occupant which owner or afforded basis for reasonable such belief. may dedication, implied use, An invitation customary lie or enticement, allurement, may or inducement to enter. mani arrangement premises or fested the conduct of the also, 810, 220; see, owner.” J. Rothschild, C. sec. Glaser v. [45 180, 1, (N. S.) 120 W. L. R. Mo. S. A. 17 Ann. Cas. 576.] ordinary an is duty owner’s invitee prevent take care to his injury. Rothschild, supra.] [Glaser

Ordinarily, one who because of inclination, goes his own into merely plant an to observe operation, satisfy industrial its his curiosity operates solely how it own or learn for his own benefit regardless only, is a licensee of whether he wanders around him is, through curtesy, guide. self the owner’s furnished or Under circumstances, plain that, those seems to be unless some further by statute, imposed only duty duty of the owner is he injure wilfully wantonly him, knowingly must or go let him peril, otherwise, act, into hidden negligent affirmative injure presence after his is or position him should be discovered danger. duty him no protect of He owes affirmative of care to him. 796, 201; J. also sees. C. sec. [45 207-212.]

8.98 (Pa.), 552, 72 Atl. 21 L. R. A. Carnegie Steel Weaver v. Co.

In mill fell (N. S.) 466, in a steel group where of of visitors one through floor, it was said: opening the ‘‘ sought in behalf and obtained present permission In the ease . object visiting mill. body gentlemen who of that to the so pleasure visitors; and benefit of the visit to afford merely owner. part show case of license facts appellant to invited or nothing is in the show record There it any mill, to the steel but act the defendant visit induced grati- entirely personal there for own appear that he went his does ’’ fication. case, Likewise, it in another was stated: business, . sightseer, goes any “A mere on other into one of the no throughout operation factories civilized world. large modern part, requires great care watchfulness on his unfamiliar and danger injury, places things, escape avoid such to he is with fit, reasonably although place everything is is carried safe injury, ordinary care; but unless is due there wanton on with Why negligence, is not ? gross the owner liable. The owner result induce, only permitted, trap him; for he did not but him has set no come; business; place appliances belong he is not on to manufacturing company; it was fixed them for their em knowledge them; skill ployees; it suits avoid may dangerous, though unskilled and unfamiliar danger, to those fact; —dangerous fo;r, it wús is one in but not made not for, any purpose with which anything the licensee has carried wanton, negligence is injury gross, not do; if liable, him for owed no other company duty, is not and that [Myers v. Gulf Public Corp. violated.” Service has not been one River 416; Poling (W. v. Ohio Railroad Va.), Co. (La.), So. R. 24 L. A. E. 18 S. 215.] this rule has been applied cases where number of

In a class seeing teacher the purpose with their come students machinery. (Md.), v. Baltimore Traction operation of Co. [Benson Knitting Castonguay v. Acme 973; Machine & Needle Co. Atl. 720; Myers v. H.), Corp. Gulf Public Service (N. (La.), 136 Atl. Independent Packing 416; Co., Louis v. St. Mo. App. Roe 132 So. 11, 217 S. W. 332.] all

However, cases isolated visits. In these none of was, visit described them, here, pursuant shown wus it for the same long custom class and established similar classes to to a purpose receiving there; visit instruction go part employees as of the school work class; owner’s anything visited did plant owners indicate a de visit made; in any way visit related sire In the Benson proprietors. case the members any purposes class, having training through after been shown the manual aof permitted to look for by employee, were around them- premises an there, injured plaintiff, doing. was while so The de- selves and company only grant asked the school principal was fendant power visit house. said permission the class its The court that clearly permission was granting of the mere license “to an the machinery works .and power of the for house, examination gratifying curiosity their or of purpose improving knowl- workmanship machinery of the edge of the and of the manner applied moving power such the cars the streets city,” no benefit accrue and that could to the In defendant. Castonguay put upon ground the decision was case that the gave manager permission for the students who to visit defendant’s authority anyone there. no invite That case mill had does arrangements here, for classes because were shown apply to have always made with the defendants been themselves. chemistry class Myers was taken plant.

In case to an ice special neither a expressly shown there was a standing It was nor bring classes there and the class brought was not invitation advertising purposes. court, holding for The licensees, said: degree no sense or was in

“The visit interest or benefit suggestion defendant, it made nor at of the defendant any employees. request for permission The or its to make chemistry from visit of observation came class and its mem- by the class represented teacher of the bers principal high There was no common school. interest advantage. mutual from The derived the visit were benefits to be educational and were strictly to the benefit of the solely inure visiting members of way, directly class, indirectly, and in no did the defendant pure by it. It accommodation benefit and inconvenience on employees.” its part of the defendant case, decided Louis In the the St. Court Roe Appeals, designated class, M. Y. C. A. observation class, was taken plant. through packing defendant’s shown that the visit was educational, for education of boys “purely themselves” and advertising purpose was “not that it of the plant itself.” argued an invitee It was because there was some visit; defendant “that benefit to the a recognized, practical advertising, one of the best method means for increasing general get public to visit a is to business mercantile or manufac- purpose acquainting turing plant for the them with the modern conducting same, system as well hygienic as familiarizing the operation department each with visitor thereof; that such public result benefit part visits on the to the company whose generally admitted, is inspected though thus plant the benefit in- may company any particular the visit of accrue to the out of ” long delayed.’ ‘may dividual be however, concerning argument: court, might applied “'What case where rule should be to a hypothesis argument appellant’s the facts estab used as case, namely, manufacturing plant in the lished the record that the openly public an invitation to visit its advertised and extended to the employees guides purpose act to plant, furnished to such as public general accepted invitation, question such of who such is a necessary decide, in which facts this case it is not to under the for us Independent ease before us.” v. St. we have no such Louis [Roe Packing Co., 217 W. c. S. l. 337.] hypo- It decision would seem that we do have for here the exact majority Appeals. thetical the St. Louis Court of case stated City opinion Appeals correctly Kansas Court of subject: this years

“It that for prior plain- was also evidence several to the plan injury tiff’s it was defendants’ business public to invite arrange generally, ‘appointments’ with, for, to or have classes Kirksville, year, various schools some or times a five six business place they to visit to witness the manner in their which prepared products, duty their ‘and it our to tell them how and why produced our stuff the condition we that we did.’ When came, place ‘they were taken classes to the instruction.’ When freezing, ‘demonstration of were to look at ice cream I took them them freezer and showed how it to the was frozen how it ’ freezer, put hardening we it in came out of the where room. given Samples of cream were the classes. ice Defendants would al- ways to the care exercised sanitary call attention them keep to products. of their preparation methods of In other words, the (no anybody may themselves show matter what say) may not facts that defendants invited and gave permission to students and others place of business observe visit their manner in products made, being their was conducted and purpose for the advertising effectively their business. At time continuously years for several injured, date, before that there place of defendants’ sign window reading business urged ‘Inspection Invited.’ is is there no evidence to show - sign saw this or came to place ever of business therein, invitation contained response to the and the intimation regarded However, as an not be invitee. is could she the evidence seen it times and had at when gone is she did see there milk, sign in the front room. But the buy shows, sold and so given and attention to those come, treatment who does the did how coming regarded what the purpose defendants in ex- such, inyitation. plaintiff’s coming Whether tending in direct acceptance of this response implied direct and invita also expressly affirmatively proved, tion need not be since it seems that certainly the custom of persons it was because of receiving showing so, defendants’ manner of them and do when special to them come. implied attention So an premises invitation to use arises when a benefit accrues to the owner such or when thereof from use the use is the interest of parties both business; duty with owner’s or is connected and the of the owner goes towards another who premises thereon an result of person is if implied invitation the same as went thereon express C., invitation. [Cleveland, & result of C. St. L. R. Co. 105, 1073, Powers, 88 N. E. 485; 173 Ind. N. E. Sherman Ed.) Neg. (6 sec. As hereinabove, & Eedfield shown 706.] tending express to show both an implied and an evidence invi tation.” find agree with this conclusion and there is

We substantial While so show. the status of an evidence to invitee will enter on or by permission property, use the accorded absence owner, yet benefit where there real has been a custom premises enter on the persons purposes to certain with the owner, of an will acquiescence invitation implied, although be an implied occasional 821-22, invitation will not be use. C. J. [45 also, see, Malting Fleishmann Co. v. 231; Mrkacek, see. 14 (2d) Fed. Ry. (Va.), & Manchester v. 602; Richmond Co. Moore 37 A. L. R. 221 Rothschild, 180, 1, Mo. 120 258; v. S. 22 Glaser W. L. R. A. 1045, 576; see, also, (N. S.) Cas. 27 A. 1018, Ann. L. R. note, v. Marshall ease of O’Rourke & following (Ill.), Field Co. E.N. 27 A. L. R. 1014.] only general here not tends to show The evidence a invitation generally prospective customers, part as as public to the of defend- ’ advertising methods, inspect plant, to their ants it but tends to show, bringing custom long of school their continued classes there purposes instructing same in furtherance them as part a work, special inducement their school the school authorities to more than bring It tends show them. also a visit to gratify the given Plaintiff was students. no choice desires the matter. regular her class were assembled for their work, When she class ’ day that their class work that they told was to be in were defendants They children, school under creamery. were discipline school premises, as they so far defendants’ were taken to concerned for As in defendants’ stated brief this purposes. “was school part work, not a lark holiday.” it was They of their school just foreman defendants’ as instructed would have high long-established school. From teacher at the been bringing other class and classes there annually this custom making making and ice just in butter cream instructing them believing school, jury justified in would be class is instructed arrangement standing grew was based long out Such an that implied invitation to benefit to an some school authorities. find justify

Having there was evidence determined that invitee, hold that trial court ing we that made, holding had because right, in that submissible case been injury. prevent ordinary care to his duty an invitee to take testimony defendants’ fore Rothschild, supra.] The [Glaser girls fifteen-year-old school high would that he knew man shows suggest, reason, as defendants eat ice. There was no pick up and expect only piece. them one The ice crusher why to eat he would steps apart. de only Accepting three or four and the churn power that Pierson had shut off the crusher theory fendants’ momentum, high school operating on its own it is obvious age expected years could not be to know that the girls fifteen churn, operated operated upon shaft which the same crusher off, though completely shut even power was unless the dangerous, prongs re hidden would still be stopped, churn that, than ice crusher. More this ice crusher volving inside of the dangerous piece particularly because a had been time, was, at front, which enabled to reach it and be one into out of the broken regrettable shown accident could caught by prongs. care, in its normal condition. been Due happened, had not have circumstances, prevent injury young girls to these these under dangers taking its before warned of them required near it when was in be só motion. they would place where Ferguson Sturgis, GG., is affirmed. concur. judgment foregoing opinion by Hyde, adopted isC., PER CURIAM:—The judges All of the concur. court. opinion of the Company Appellant. St. Service Louis Public Zichler Gustav (2d) 654. 59 W. S. April 20, One, 1933. Division

Case Details

Case Name: Gilliland v. Bondurant

Court Name: Supreme Court of Missouri

Date Published: Apr 20, 1933

Citation: 59 S.W.2d 679

Court Abbreviation: Mo.