{
  "id": 8655603,
  "name": "H. F. LEAVISTER v. JESSE FRENCH & SON PIANO COMPANY",
  "name_abbreviation": "Leavister v. Jesse French & Son Piano Co.",
  "decision_date": "1923-03-21",
  "docket_number": "",
  "first_page": "152",
  "last_page": "155",
  "citations": [
    {
      "type": "official",
      "cite": "185 N.C. 152"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "165 N. C., 244",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8658600
      ],
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    {
      "cite": "151 N. C., 377",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "22 L. R. A. (N. S.), 1055",
      "category": "reporters:federal",
      "reporter": "L.R.A.N.S.",
      "opinion_index": 0
    },
    {
      "cite": "179 N. C., 686",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8657875,
        8657839
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      "opinion_index": 0,
      "case_paths": [
        "/nc/179/0686-02",
        "/nc/179/0686-01"
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  "last_updated": "2023-07-14T20:46:28.944101+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "H. F. LEAVISTER v. JESSE FRENCH & SON PIANO COMPANY."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nUpon tbe evidence tbe motion for nonsuit was properly refused. Tbe defendant contended tbat tbe plaintiff was a mere licensee. Tbe plaintiff contended tbat be was an invitee, and tbe jury so found.\nUpon the defendant\u2019s own evidence, the store was open, lighted, doing business, and the appellee on coming in made known tbat be was there as an intending purchaser, and was so received. the issue as to whether the plaintiff was an invitee or a licensee was properly submitted to the jury. 20 R. C. L., p. 68, sec. 58. \u00a5e have examined with care the exceptions to the charge and to the evidence, and cannot sustain them.\nIn Ellington v. Ricks, 179 N. C., 686, tbe Court quoted with approval from 20 R. C. L. as follows: \u201cThe authorities are entirely agreed upon the proposition tbat an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon and therein owes to such person a duty to have his premises in a reasonably safe condition, and to give warning of latent or concealed perils\u201d (p. 55) ; and further, that \u201cthe owner or occupant of premises is liable for injury sustained by persons who lawfully enter thereon only when the injury results from the use and occupation of that part of the premises which has been designated, adapted, and prepared for the accommodation of such persons\u201d (p. 67). In that case our Court said: \u201cIf an invitee goes to out-of-the-way places on the premises, wholly disconnected from and in no way pertaining to the business in hand, and is injured, there is no liability, citing Glaser v. Rothschild, 22 L. R. A. (N. S.), 1055, but a slight departure by him in the ordinary' aberrations or casualties of travel does not change the rule or ground of liability, and the protection of the law is extended to him while lawfully upon that portion of the premises reasonably embraced within the object of his visit. Monroe v. R. R., 151 N. C., 377.\u201d In the present case there was no warning of any latent or concealed peril from the open trap door, and the situation of the piano in that connection was a question for the jury, properly-submitted.\nThe defendant insists particularly upon exception 20, contending that it was error not to charge the jury in the identical language of the prayer as follows: \u201cThe occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when the injury results from the use and occupation of that part of the premises which has been designed, adapted, and prepared for the accommodation of such persons, and if the jury shall find from the evidence that plaintiff, at the time he stepped into the opening to defendant\u2019s basement was not in that part of the store which was designed, adapted, and prepared. for the accommodation of defendant\u2019s customers, they will answer the first issue \u2018No,\u2019 even though the jury should find from the greater weight of the evidence that plaintiff was an invitee on defendant\u2019s premises at the time.\u201d The court, in stating the defendant\u2019s contentions, said: \u201cThe defendant contends that this cabinet was not opposite the trap door,, but was beyond it, and contends there was a piano at the end of it and a piano at the side of it, so close together that a man could not get between the two without imlling one away, and contends that the plaintiff was not invited to go down there\u201d; and then instructed the jury that unless they should find that plaintiff was invited in for purposes of trade, and an employee pointed him to the cabinet, and he fell into the trap door when he was exercising such care as a reasonably prudent man would use under such circumstances, to answer the issue \u201cNo.\u201d\nThis was more favorable to defendant than its instruction asked, for it required the jury to find that plaintiff was not only invited in, but was directed to the space near the open trap door, and tbat be exercised due care. Under' the instruction, as given, every fact upon wbicb the instruction was prayed and refused is predicated. Carter v. R. R., 165 N. C., 244.\nIndeed, there was very little, if any, evidence tbat any part of the store was set apart from customers. It was a small room, the depth of the store being only 30 feet, and the cabinet only 18 or 20 feet from the front.door. If the trap door was set apart from use by the public, there was nothing to indicate it. the pianos being goods for sale, invited rather than warned the customers. If there were two arranged in this instance, their arrangement may have served to conceal the trap door rather than to warn the customer, and probably cut off the light from the open trap. the music rolls being above the pianos, a customer to inspect them might be led into a fall much in the manner tbat wild beasts are trapped when the bait is suspended above the pit.\nUpon examination of all tbe exceptions, without going into further detail, we think tbat tbe case was properly and fully presented to tbe jury, and we find\nNo error.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Douglass & Douglass and Pou, Bailey & Pou for plaintiff.",
      "Burgess & Joyner, Oscar Leach, and Murray Allen for defendant."
    ],
    "corrections": "",
    "head_matter": "H. F. LEAVISTER v. JESSE FRENCH & SON PIANO COMPANY.\n(Filed 21 March, 1923.)\n1. Negligence \u2014 Invitee\u2014Licensee\u2014Evidence\u2014Questions for Jury \u2014 Trials.\nWhere the injury for which damages are sought in the action was received by the plaintiff in falling through an open trap door in the defendant\u2019s store while he was there for the purpose of purchasing merchandise, and the defendant contends it was at night, after business hours, and that the injury occurred in a part of the store set apart from customers ; and there is evidence in plaintiff\u2019s behalf that the store was then lighted and open for business, and be bad gone, under tbe direction of tbe clerk, to a cabinet in wbieb tbe goods be desired were kept, and tbe injury occurred while be was doing so, it was for tbe jury to decide, in considering tbe issue as to tbe defendant\u2019s negligence, whether tbe plaintiff, under tbe circumstances, was an invitee or licensee, and defendant\u2019s motion as of nonsuit was properly denied.\n3. Same \u2014 Instructions\u2014Appeal and Error.\nIn an action to recover damages for tbe negligence of defendant in causing a personal injury, involving tbe question whether tbe plaintiff was an invitee or licensee on tbat part of tbe defendant\u2019s premises where tbe injury occurred, an exception to tbe refusal of tbe judge to give tbe defendant\u2019s prayer for special instruction on tbat phase of tbe case is untenable on appeal, when it appears tbat tbe trial judge substantially incorporated tbe requested prayer in bis general charge, and further instructed tbe jury tbat tbe plaintiff must show tbat, under tbe circumstances, be exercised due care in order to recover.\nAppeal by defendant from Lyon, J., at October Term, 1922, of Wake.\nTbis is an action for damages for injuries sustained by defendant\u2019s negligence. He alleges tbat be went into defendant\u2019s store to purchase music rolls advertised in tbe window. Tbe store was lighted, tbe door open. He made known bis wishes to a salesman, who at tbe time was attending upon another customer, but who directed tbe plaintiff to a cabinet in tbe rear of tbe store a few feet away.\nAs tbe plaintiff approached tbe cabinet be'fell through an open trap door in the floor and was injured. Tbe defendant\u2019s defense was tbat tbe plaintiff came into tbe store after regular business hours and tbe trap door was not in tbat part of tbe store used by customers. Tbe evidence was somewhat in conflict on tbis point. Yerdict and judgment for tbe plaintiff. Appeal by defendant.\nDouglass & Douglass and Pou, Bailey & Pou for plaintiff.\nBurgess & Joyner, Oscar Leach, and Murray Allen for defendant."
  },
  "file_name": "0152-01",
  "first_page_order": 218,
  "last_page_order": 221
}