are endeavoring to deduce an implied license from the fact that on prior occasions other persons had pursued the same course as that adopted by the plaintiff and that others had done the same thing on the evening in question. The conclusion to be inferred from these facts, however, is that the defendant suffered from numerous trespasses instead of from only one.
If while A is away from his home, B drives an automobile into A's front yard, leaves it there, and then stumbles into a depression on A's property, B has no cause of action against A for personal injuries so sustained in view of the fact that B is a trespasser. The same result follows if on several prior occasions B had driven and left his automobile in A's yard and in A's absence, of if C, D, and E had done the same thing. The fact that A may have been aware of the trespass is immaterial. He is under no obligation to barricade his property, or to incur the expense of employing someone to watch the place and exclude trespassers. Mere failure to take affirmative steps to prevent repetitions of a trespass does not transform the trespasser into a licensee, unless indeed the trespasses continue over a period long enough to ripen into a prescriptive right.
The plaintiff urges that the rule is otherwise as to places used for business purposes. No distinction in principle is perceived, however, between a trespass on real property used as a residence and a trespass on real property devoted to business. For example, an intruder into a store at night, who is injured by a fall on a defective stairway, may not recover damages from the owner of the property. Even if the door had been left open or unlocked, and even if the intruder acted in good faith and entered for an innocent purpose of his own, the same principle would apply.
In the instant case, the plaintiff entered the property while it was closed for business. He did not come as a prospective customer. He took advantage of the fact that the place was not barricaded and entered without permission for objects of his own. Clearly in so doing he was a trespasser, no matter how innocent and harmless his purpose may have been. The fact that the saw others pursue the same course, or that on prior occasions others did the same thing, would not change his position to that of a licensee. On the contrary, the other persons who entered the property under similar circumstances were also trespassers.
The Court of Appeals for the District of Columbia stated in Branan v. Wimsatt, 54 App.D.C. 374, 378, 298 F. 833, 837:
'Persons engaged in business may be considered as inviting the public to do business with them, and to enter their stores or places of business for that purpose; but it can hardly be said that that invitation is broad enough to include those who have no business to transact, and enter from curiosity of for their own interest, convenience, or gratification.
'Neither can it be said that an owner who tolerates a trespass, and who takes no steps to interfere with the practice, has impliedly extended an invitation to either invade or use his premises.'
It is well settled that the owner or occupier of real property owes no duty to a trespasser to maintain the property in safe condition, because the trespasser takes the risk when he enters the property. The only obligation affecting a trespasser is to abstain from the infliction of an intentional, wanton, or wilful injury, as well as not to maintain some hidden engine of destruction. Mendelowitz v. Neisner, 258 N.Y. 181, 184, 179 N.E. 378.
As heretofore stated, the plaintiff urges that he was not a trespasser but a licensee. The Court deems this contention to be untenable. Nevertheless, it may be added that even if it were sustained, it would not aid the plaintiff. In this respect, the duty in respect to a licensee is no greater than that owed to a trespasser.
In Radio Cab v. Houser, 76 App.D.C. 35, 36, 128 F.2d 604, 605, Mr. Chief Justice Groner, summarized this principle as follows: 'His (i.e. occupier's) freedom from liability arises where the injuries are caused by reason of the unsafe condition of the premises, as to which the licensee takes the risk.'
In Morse v. Sinclair Automobile Service Corporation, 5 Cir., 86 F.2d 298, in which the facts were similar to those presented in the case at bar, the court held that under such circumstances there is no liability to a licensee.
The plaintiff relied principally on the case of Standard Oil Co. v. Decell, 175 Miss. 251, 166 So. 379, which was decided by a divided vote. There are two strong dissenting opinions. Moreover, on close analysis, even the majority opinion is hardly an authority for the plaintiff's position, although superficially the facts of that case seem parallel to those here involved. In the cited case, the filling station was located on city property, which had been used as a public way for years. The plaintiff entered the station, not for any purpose of his own, but on a mission of interest to the operator of the station. For both these reasons, the plaintiff could hardly have been considered to be a trespasser.
In view of the foregoing disposition of the matter, it does not appear necessary to discuss the respective duties and liabilities of the defendant Shell Oil Company, the owner of the property, and the defendant Lacey, the operator of the station.
Motion for a new trial is denied.
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