Olivier v. Snowden

GREENHILL, Justice

(dissenting).

I cannot agree with the conclusion of the Court that as a matter of law the plaintiff Snowden was not an invitee on the scaffold of defendant Olivier at the time of the accident. The testimony establishes that the various contractors and their employees used each other’s scaffolds whenever useful; and that this custom, practice and understanding was followed on this particular job as well as in the local construction industry in general. Although the evidence indicates that defendant Olivier was not responsible for furnishing scaffolds for employees of other contractors, it is undisputed that he did not object to the use of his scaffolding by such other employees, and that Olivier’s employees used the scaffolding of other contractors whenever necessary or useful.

Further the testimony conclusively establishes that the custom or practice of the reciprocal use of scaffolds was followed because it was mutually advantageous and beneficial to each contractor on a particular job. The various contractors benefited from the reciprocal use of each other’s scaffolds by saving the time and expense of erecting their own scaffolds when an existing scaffold would serve the purpose. Otherwise, as the record indicates, a contractor *553 might be forced to tear down an existing scaffold and erect a new one in the same place; thus the reciprocal use of scaffolds was practical and economical. It is also established that defendant Olivier acquiesced in this custom and practice, and it may reasonably be inferred that he benefited thereby ; he testified himself that there were occasions when he and his men used the scaffolds of other contractors. There is no explanation in the record for defendant Olivier’s acquiescence in the practice of sharing scaffolds; except that this custom and practice was mutually beneficial to all concerned and in the mutual interest of all the contractors on a job.

The statement in the Court’s opinion that “there is no evidence that Snowden’s use of the scaffold was for the benefit of Olivier” ignores the basis for the custom among contractors of permitting each other’s employees the use of scaffolds erected by each other. That custom is based on sound business reasons — thus, it is of benefit to each contractor to follow the custom in connection with the construction of a particular building. The consent or implied invitation under these circumstances would be given for business reasons and not merely to accommodate the other contractor or his employees who use the scaffold. “An invitation is inferred when there is a common interest or mutual advantage, while a license is inferred when the object is the mere benefit or pleasure of the person using it.” Galveston Oil Co. v. Morton, 70 Tex. 400 , 7 S. W. 756 (1888). If the purpose of the implied invitation was for business reasons, the economic benefit need not be direct or certain, so long as there is a mutual interest or business reason involved. Lindelow v. Peter Kiewit Sons’, Inc., 174 Neb. 1 , 115 N.W.2d 776 (1962); Findley v. Lipsitz, 106 Ga.App. 24 , 126 S.E.2d 299 (1962); Dotson v. Haddock, 46 Wash.2d 52 , 278 P.2d 338 (1955); see Annotation, 95 A.L.R.2d 992 (1964).

Since Olivier acquiesced or permitted the use of his scaffold for business reasons, there was, in my opinion, an implied invitation rather than a license, since such acquiescence would be to Olivier’s advantage and in the mutual interest of the contractors on the job. As stated, the majority’s statement that “the evidence shows at most that Snowden was using and occupying the scaffold by acquiescence and not by invitation” ignores the evidence that the custom of sharing scaffolds was mutually advantageous. Thus an implied invitation should be inferred because the acquiescence or permission was given for business reasons, indirectly beneficial to defendant Olivier.

Arthur v. Standard Engineering Co., 89 U.S.App.D.C. 399 , 193 F.2d 903 , 32 A.L.R.2d 408 (1951) cited by the Court is in point; but, in my opinion, it is wrongly decided and should not be followed. In Brauner v. Leutz, 293 Ky. 406 , 169 S.W.2d 4 (1943), there was apparently no evidence of mutual advantage or interest, since it was unmentioned by the Court. In the instant case, there was evidence that defendant Olivier acquiesced in the custom of sharing his scaffold for business reasons to his own indirect advantage, and not merely to accommodate or benefit plaintiff Snowden. There is no Texas case either way; and under these circumstances, the sounder rule would be that this is evidence of an implied invitation and at least an indirect benefit sufficient to make the plaintiff an invitee.

When it is shown that it is the custom of workmen of different crafts or employers to use the scaffolds of the other on this or the next job, it would appear sound to me to require that the scaffolds be constructed in a reasonably safe manner for all workers who might reasonably be foreseen as using them and in a manner which was ordinary. The jury acquitted the plaintiff of contributory negligence and assumed risk, and no point is presented to us on either of those issues. The defendant had points in the Court of Civil Appeals that the evidence to support these issues was insufficient. They were overruled.

I would affirm the judgments of the trial court and the Court of Civil Appeals.

CALVERT, C. J., STEAKLEY and POPE, JJ., join in this dissent.