Husted v. Richards ( 1969 )

Lyle Brown, Justice.

Leonard Husted suffered fatal injuries when a remaining portion of a burned building fell on him during razing operations. His administratrix brought this suit against the demolition contractor, Mike Richards, and his bulldozer operator, Curtis Willis. The jury verdict favored the defendants and the administratrix appeals, alleging error in the giving and refusing of four instructions.

The deceased, age 73, worked occasionally for Mike Richards. He was not employed on the day of the accident. There were three workers on the job of tearing down the two-story Desota Cafe in Benton, which had been gutted by fire. Curtis Willis was demolishing the structure and loading the trucks with the use of a bulldozer and attachments. As the debris accumulated, Willis would load it on trucks operated by Alfred Whitfield and an unidentified driver.

Mr. Husted had been on the cafe premises the day before the accident. Assisted by Mike Richards, Husted loaded some of the loose brick in his truck. The next day Husted came on the premises shortly before noon. While Willis was in the process of loading Whitfield’s truck, Husted entered the building. From Ms position in the truck, Whitfield could see Husted using a sledge hammer and attempting to knock loose some two-by-four supports. After loading- Whitfield’s truck, Willis caught hold of a portion of the roof with the bucket of Ms loader. 'That entire portion of the roof fell. Some part of the falling debris pinned Mr. Husted. He made an outcry and the two workers immediately attempted rescue. Husted was dying when the employees reached him.

The administratrix contended that Leonard Husted was an invitee. The defendants insisted that he was a trespasser or at most a licensee. The trial court eliminated from the jury’s consideration the question of whether Husted was an invitee. Then the court gave defendants’ instruction defining licensee and treaspasser. The substance of the contentions on appeal is that the court should have submitted to the jury the question of Husted’s alleged status of an invitee and should not have permitted the jury to consider Husted as a possible treaspasser. Those contentions require an analysis of the evidence which sheds light on Husted’s status while in the building.

If Husted went upon the premises by invitation, express or implied, for a purpose connected with Richards’ operation, or for a purpose mutually beneficial to Husted and Richards, then Husted would have been an invitee. See AMI 1106. If Husted could have been classed as an invitee it would have to have been from three fragments of evidence: (1) He had theretofore been permitted to pick up scrap materials, such as bricks, at the jobsite; (2) when notified of the accident, Richards was said to have expressed regret that he ever consented for Husted to “get anything off the job”; and (3) Mrs. Husted testified that for his labors her husband was paid by Richards either in cash or in materials.

The fragmentary evidence we have recited was offered by the administratrix. Richards testified that on the day before the accident, when they were putting brick in Husted’s truck, he instructed Husted not to return for any more brick; that Richards considered it too dangerous. The bulldozer operator testified that on the day of and shortly before the accident he had warned Mr. Husted not to go near the building. The truck driver, Whitfield, was called as a witness by the administratrix. On cross-examination he testified that he told Mr. Husted that he (the driver) would not go into the building “for a hundred dollars.” He also testified that he saw Husted trying to knock out a two-by-four and yelled to him that he was going to weaken the structure.

Let us say, arguendo, that Husted had an implied invitation to pick up scrap materials around the jobsite, for which Richards would take credit as against Husted’s earnings. It is inconceivable that his invitation extended to entrance inside the building at a time when it was apparent to all present that the supporting walls were being dismantled. It has been held that when one crossed the boundaries of the invitation, “he ceased to be an invitee. His status then changes to that of a licensee or ¡even a trespasser.” Steinberg v. Irwin Operating Co., 90 So. 2d 460 (Fla. 1956).

We cannot say the court erred in holding’ as a matter of law that Husted was not an invitee. We think there was ample evidence to submit the question of whether he was a trespasser.

Affirmed.

Fogleman, J., dissents.