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ARGO v. GOODSTEIN (05/27/70)

decided: May 27, 1970.

ARGO
v.
GOODSTEIN, APPELLANT



Appeal from judgment of Court of Common Pleas of Delaware County, March T., 1962, No. 1621, in case of James Argo v. Sidney Goodstein.

COUNSEL

Robert B. Surrick, with him Cramp & D'Iorio, for appellant.

Garland D. Cherry, with him Kassab, Cherry, Curran & Archbold, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Cohen dissent.

Author: O'brien

[ 438 Pa. Page 470]

Appellee, James Argo, blind since birth, was a door-to-door peddler of brooms, brushes and dusters. For some ten to twelve years, on the occasion of every three

[ 438 Pa. Page 471]

    to four months, appellee had visited each and every store in the 6700 block of Market Street in Upper Darby, Delaware County, a business section of town, including the premises owned by the Good Company, whose president was Sidney Goodstein, the appellant. On July 11, 1960, at approximately 11:30 a.m., appellee approached the door to the premises in question, heavily laden with his wares. Pushing open the unlocked door, he felt with his cane (apparently striking on the foundation wall or threshold area). Then, holding open the door with his right shoulder, he grabbed his brooms and stepped quickly so as not to be hit by the door. The first step he took was within the range of his cane and brought his foot onto a solid surface. Unfortunately, as he entered he stepped into a floorless area and fell 8 feet 8 inches onto the basement floor below, as a result of which he sustained serious personal injuries.

As appellee later discovered, the Good Company was expanding and remodeling. Two companion suits were brought in trespass against Good Company, Inc., the owner of the premises, and against its President, Sidney Goodstein, as the general contractor in charge of the construction work being done on the premises.

Initially, the case was tried in May, 1964, and a jury verdict totaling $27,500 was rendered in favor of the appellee against both defendants. The defendants appealed from the judgment entered on the verdict after the denial of their motions for judgment n.o.v., and for a new trial. We affirmed the judgment in an opinion by Mr. Justice Musmanno.

However, the appellants filed a petition for reargument concerning a communication between the trial judge and the jury in the absence of counsel. After reargument, based on the aforesaid communication, we withdrew our previously rendered opinion and ordered a new trial.

[ 438 Pa. Page 472]

A second trial was held on February 13, 14, 15 and 16, 1968, and the jury rendered a verdict in favor of the appellee against the appellant, Sidney Goodstein, in the amount of $38,000, and in the companion action in favor of the defendant, Good Company, Inc. Motions for new trial and judgment n.o.v. were denied below and, once again, an appeal followed the entry of judgment.

In seeking a reversal, the appellant raises several issues. The primary issue presented, the same presented after the first trial, is whether there was sufficient evidence of negligence to allow submission of the case to the jury.

The standard of care required of appellant towards appellee, the breach of which would be negligence, depends on appellee's status on the premises, i.e., whether he was a trespasser (voluntary or involuntary), a licensee, or a business visitor. By a special finding of fact, the jury found that appellee was a business visitor.

We are of the opinion that sufficient evidence was present in the record to sustain this finding. "A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them." Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 59 A.2d 68 (1948), citing Sec. 332 of Restatement of Torts.

Furthermore, "the class of persons qualifying as business visitors is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor, but includes as well those coming upon the land for a purpose connected with their own business which itself is directly or indirectly connected with a purpose for which the possessor uses the land." Straight v. Goodrich Co., 354 Pa. 391, 47 A.2d 605 (1946), citing ยง 332, Comment a of the Restatement of Torts.

[ 438 Pa. Page 473]

Appellee's purpose on the premises was to sell his brooms, brushes, and dusters. There was evidence that appellee had previously entered appellant's premises and had transacted business with him. On these previous occasions, he was clearly a business visitor, as any vendor would be in such a situation. See Robb v. Niles-Bement-Pond Co., 269 Pa. 298, 112 Atl. 459 (1921), where a daily iceman was deemed to be a business visitor, and Hartman v. Miller, 143 Pa. Superior Ct. 143, 17 A.2d 652 (1941), where a waiting salesman was held to be a business visitor.

In challenging the jury's finding that appellee was a business visitor, appellant argues that appellee was bound by the conclusion to which appellant testified, i.e., that the premises were no longer a store, but were instead a construction site, since appellant was called as for cross-examination. However, the rule that where a litigant calls his adversary on cross-examination he is bound by the testimony is limited by the principle that "the testimony adduced as on cross-examination may not only be contradicted by the direct testimony of other persons but may be impeached by its own inconsistencies or by such intrinsic improbability or obvious falsity as to stamp it unworthy of credit." Bogdanoff v. Manis, 346 Pa. 243, 30 A.2d 321 (1943).

As the court below points out, there were at least nine inconsistencies in appellant's testimony. We agree with the court below. Appellant's testimony ...


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