Renfro Drug Co. v. Lewis (235 S.W.2d 609, 1950)

CALVERT, Justice.

H. .L. Lewis sued Renfro Drug Company, a corporation, Edward Joseph, do ing business as Motoramp Garage, the Capital National Bank in Austin, a corporation, for the recovery of damages for personal injuries sustained in a fall through a doorway leading from Motoramp Garage into Renfro Drug Store. The defendants in the trial court will be referred to in this opinion as Renfro, Joseph or Moto-ramp, and Bank. and

Trial was to the court without the intervention of a jury, and at the conclusion thereof the court entered judgment denying to plaintiff Lewis any recovery against/T Joseph, granting to Lewis a recovery of | $22,256.26 against Renfro and Bank, jointly and severally, granting to Renfro a re-} [ Ü j 7 j covery over against Bank by way of indemnity of any sum or sums it should pay or cause to 'be paid in satisfaction of the judgment in favor of Lewis, and denying to Bank and Renfro any recovery over against Joseph either by way of contribution or by way of indemnity. Lewis did not perfect an appeal from that portion of the judgment denying him a recovery against Joseph. Both Renfro and Bank perfected appeals from that portion of the judgment awarding Lewis a recovery against them and from that portion of the judgment denying them a recovery over against Joseph. In addition Bank perfected its appeal from that portion of the judgment awarding Renfro a recovery over against Bank by way of indemnity.

The Court of Civil Appeals disagreed with the trial court’s judgment of nonlia.-bilityof Joseph to Lewis; but, since Lewis did not appeal from that portion of the judgment, considered Joseph liable to Lewis only for the purpose of determining whether Joseph as a joint tort-feasor should be required to indemnify Bank or contribute, under the provisions of Art. 2212, to the payment of the judgment. The court proceeded to affirm the judgment in favor' of Lewis against Renfro and Bank; but, holding that Joseph had no control over the premises where the injuries occurred, denied both Renfro and Bank any recovery over against Joseph for any portion of the judgment. The court also disagreed with that portion of the trial 'court’s 'judgment which required Bank to indemnify Renfro and reformed that portion of the judgment so that each, Bank and Renfro, were required to contribute equally to the payment of the judgment. Tex.Civ.App.,. 228 S.W.2d 221. Both Renfro and Bank filed petitions for writs of error and both petitions were granted.

Before this court Renfro has abandoned its claim to contribution from Joseph but Bank, by appropriate points of error, has preserved its right to press its claim against Joseph for indemnity and, alternatively, for contribution.

0⅛£1. of ⅛; petitioners may be stated gen. j The questions raised here for our determination by points of error of one or the erally as follows:

(1) That there was no evidence to sustain the implied finding of the trial court that either Renfro or Bank was guilty of actionable negligence proximately causing plaintiff’s injuries;

(2) That the evidence shows conclusively, as a matter of law, that plaintiff Lewis was guilty of contributory negligence which was a proximate cause of his injuries; and

(3) The respective liabilities of Joseph, Renfro and Bank to each other.

No findings of facts or conclusions of law were requested of or filed by the trial judge. The trial court’s judgment, therefore, implies all necessary fact findings, in support of the judgment. In seeking to determine whether there is . any evidence to support the judgment and the implied findings of fact incident- thereto “it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.” Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

. The following statement of the facts, for the most part unchallenged here, is adopted from the opinion of the Court of Civil Appeals:

^Mr.- Lewis was • injured on March 26s 1948. He was- then a resident of Marta, Texas,- and 68 years old. ■ While o-n the way to visit Dr. W. P. Morgan, who of-ficed in the Capital National Bank Building, he sustained his injuries.

“The Bank owned the premises occupied by the Motoramp, Renfro’s the office building, and the Ibank. They are located on the north side of West Seventh Street in Austin. Commencing on the west is the Motoramp Garage, a public storage garage, adjoining on the east is Renfro’s Drugstore, and adjoining the drugstore on the east and connected by two doors, is the elevator lobby of the office building, and to the east and adjoining are the Bank’s quarters. West Seventh Street, where these buildings are, declines rather sharply from west to east, the fall being 45 inches in the half block occupied by these buildings. There is an opening, a door, between the garage and the drugstore. * * *

“The door is of solid metal, weighing approximately 225 pounds. (Note: A picture of the door is shown in the opinion of the Court of Civil Appeals). While the picture shows the door open it is ordinarily closed and was closed when Mr. Lewis opened it to enter the drugstore. This door is kept closed by a standard closing device called a door check. The door has on it three signs. At the top and at about eye level of the average adult is the sign, ‘Caution, Watch Your Step.’ The sign is in red letters of about 3" in height on a white background. Then, the sign, ‘Renfro No. Two, Prescription Pharmacy,’ appears. Below this, and not visible in the picture, is a smaller sign, reading ‘Watch Step.’

“This door opens into the drugstore and away from the garage and opens directly over the steps, there being no platform inside the drugstore on the same level as the garage floor. The first step taken from the garage to the drugstore is down the height of the top step or riser which is 8½", and the next step or riser down to floor level of the drugstore is 8⅛", or a total difference in floor levels between the garage and the drugstore of 17¼". There is probably a half inch variation in these measurements due to the worn condition of the edges of the step. The width of the tread or step was 17".

“Also, to be noted is the fact that this door is recessed from 12" to 14" in the garage side of the wall. * * *

“Mr. Lewis was on his way to visit Dr. Morgan when he was injured. He had been to see Dr. Morgan before, and on one such occasion while he parked his car in the motoramp he did not see or use the door pictured above, which constitutes an exit from the motoramp and an entrance to Renfro’s as well as a ‘short cut’ or passageway to the elevator lobby of the Bank’s office building.

“On the day of the accident Mr. Lewis drove his car into the Motoramp Garage and stopped his car in the driveway on the extreme east side of the garage and immediately west of the partition wall. He then stepped upon a safety island immediately west of the driveway and waited there approximately one or two minutes before the garage attendant gave him a claim check for his car. The driveway is approximately twelve feet in width and the safety island is located across the driveway from the door into the drugstore.

“Mr. Lewis had intended after parking •his car to. go out the front of the Motoramp Garage to Seventh Street and then to enter the elevator lobby from the street. While waiting for his claim check, however, he saw a man go through the door from the garage into the drugstore, and he observed while the door was open that it was an entrance into the drugstore. He then decided that he would use the door and go through the drugstore to the elevator lobby.

“By the time the garage attendant handed him a claim check for his car, the car immediately ahead of his had been moved, and one of the garage employees had entered his car in order to move it from the driveway to storage. When Mr. Lewis received his claim check the garage employee in his car motioned for him to pass in front of his car toward the door to the drugstore, which he did.

“The front of Mr. Lewis’s car was stopped about 4 feet north of the north edge of the door into the drugstore, so in passing in front of this car he must -have been at least the same distance north of the door when he started walking down the wall to the door. He kept close to the wall because of cars passing and in order to protect himself from the danger of being hit.

“In approaching the door in this manner, Mr. Lewis did not observe the signs on the door or the fact that the door was solid. On reaching the door he grabbed the handle of the door, presumably with his left-hand, and pushed inwardly and, in the words of Mr. Lewis:

“ ‘When I turned the knob and pushed the door- open and started through, as I went into the drugstore, the door snapped back, and my feet slipped from under me, and everything from there went black. The next thing I found myself lying out in the floor when I came to myself.’ ’’ [Tex.Civ.App., 228 S.W.2d 223].

To require either Renfro or Bank to respond in damages to Lewis it must, of course, appear that they violated some duty of care which they owed him under the circumstances. We are met at the threshold of our consideration of the case by the contentions of Renfro and Bank, separately urged, that at the time of his injury Lewis was no more than a licensee on the premises and that there is no evidence that either violated any duty of care they owed him. We will first consider the position of Ren-fro.

If, in attempting to pass through the doorway where he was injured, Lewis, as to Renfro, was no more than a mere licensee, Renfro owed him no duty of care except to not injure him wilfully, wantonly, or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; 38 Am.Jur., p. 765, sec. 104; 65 C.J.S., Negligence, § 35, p. 491; 30 Tex.Jur., p. 857, sec. 175. There is no allegation or proof by Lewis that his injuries were wil-fully or wantonly inflicted or resulted from the gross negligence of any of the defendants. On the other hand, if in attempting to pass through the doorway Lewis was an invitee of Renfro, express or implied, Ren-fro owed him a duty to use ordinary care to keep the premises in a reasonably safe condition so that he would not be injured. Kalium v. Wheeler, 129 Tex. 74, 101 S.W.2d 225; Carlisle v. J. Weingarten, Inc., supra; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625. The duty to keep the premises jn a reasonably safe condition was not limited to the rented floor space alone but extended as well to the entrances into and the exits from the drugstore. 38 Am.Jur., p. 795, sec. 134.

At the time that Lewis drove his car into the garage and alighted therefrom he had no intention of going into or passing through the drugstore. His subsequent effort to enter the 'store was for the purpose of taking a short cut through the store to the elevators to go to Dr. Morgan's office. ■It is not shown that he had any present intention of making a purchase in the store, or, for that matter, any intention of inspecting the merchandise in the store with the view of making a purchase later. |His only fixed purpose at the time was to use the drugstore premises as a passageway to the elevators in the lobby of the building.l Under these circumstances it is the contention of Renfro that the purpose of Lewis in undertaking to enter and pass through the drugstore was to serve his own convenience, with no purpose of entering into any business relations with the owner of the store or of otherwise conferring any benefit on Renfro; that, therefore, Lewis did not enter under an implied invitation from Ren-fro and Renfro did not owe him a duty to use ordinary care to see that the premises were reasonably safe for his use. In support of its position Renfro cites, among others, the following cases : Kruse v. Houston & T. C. Ry. Co., Tex.Civ.App.1923, 253 S.W. 623; Galveston H. & S. A. Ry. Co. v. Matzdorf, 1908, 102 Tex. 42, 112 S.W. 1036, 20 L.R.A.,N.S., 833; Shawver v. American Railroad Express Co., Tex.Civ.App.1922, 236 S.W. 800 (writ refused) ; Houston Belt & Terminal Ry. Co. v. Rogers, Tex.Civ.App.1922, 44 S.W.2d 420 (writ dism.); Bustillos v. Southwestern Portland Cement Co., Tex.Com.App.1919, 211 S.W. 929; Taylor v. Fort Worth Poultry & Egg Co. Tex.Civ.App.1938, 112 S.W.2d 292. The cases cited do announce the general rule that to claim the status of implied invitee it must appear that the purpose of one going on premises owned by or under the control of another was for the benefit of the owner. -

In none of the cases cited, however, did injury occur to the plaintiff while in or going into a store where the owner kept his merchandise open and on display for inspection by the public as is the case with modern drugstores. Furthermore, the rigidity of the rule announced in the cases cited has been definitely relaxed by more recent decisions of our courts. See Kallum v. Wheeler, 1937, 129 Tex. 74, 101 S.W.2d 225; Carlisle v. J. Weingarten, Inc., 1941, 137 Tex. 220, 152 S.W.2d 1073; Texaco Country Club v. Wade, Tex.Civ.App. 1942, 163 S.W.2d 219. For an interesting discussion of the impact of the decisions of this Court in the cases of Kalium v. Wheeler jpd Carlisle v. J. Weingarten, Inc., on the rule of duty theretofore recognized as resting on the owner of premises, see 22 Tex.Law Review 489.

In the Carlisle case the injured party was a girl some eight years of age who accompanied her mother to a grocery store and fell over a box of canned goods negligently left in the aisle of the store. Admittedly the child was not in the store to herself transact any business with the store or for any purpose of benefit to the owner. Nevertheless, this court held the child to Ibe an implied invitee to whom the owner owed a duty of ordinary care for her safety. While it may be correctly said that that holding was limited on the facts to a duty owed to children, yet the rule stated in the opinion is broad enough to govern the rights of the parties in this case. It was made clear in the opinion that the existence of an intent to make a purchase was not the controlling factor in determining the status of the injured party and the court said: “ * * * The most essential factor to be considered in determining this issue is whether the premises were public or private. If one uses his premises for private purposes, (he has no reason to expect visitors other than those especially invited by him; and hence is under no obligation to keep his premises in a safe condition for the protection of those who may enter thereon without his invitation. It may be more convenient for him and those who live: and work thereon to allow the premises to remain in a condition that would be unsafe as to strangers. Under such circumstances, strangers having no business thereon of interest to the owner have no right to demand that such owner keep his premises in such condition that they may enter thereon in safety at their will. On the other hand, one who maintains a merchandise establishment, or other public place, to which, by reason of the business so conducted thereon, the public is impliedly invited to enter, necessarily expects visitors at all times. * * ⅜ It would not be a very humanitarian doctrine to say that a merchant could thus impliedly invite the public to his store, but that he was under the duty of exercising ordinary care for the safety only of those who had an intention of buying his merchandise; * * *[137 Tex. 220, 152 S.W. 1075.]

The Court quoted with' approval the rule announced in Restatement of the Law of Torts, page 898, sec. 332, subsection (b) as' follows: “ 'In determining whether a particular person is a business visitor of a possessor of land, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor. It is immaterial that the person is one whom the possessor is not willing to receive as a business visitor if the possessor’s words or other conduct are understood, and would be understood by a reasonable man, as indicating the possessor’s willingness. The nature of the use to which the possessor puts his land is 'often sufficient to express to the reasonable understanding of the public or classes or members thereof a willingness or unwillingness to receive them. Thus, the fact that a building is used as