Adams v. American Enka Corp.

BkogdeN, J. Is a manufacturing corporation which constructs and maintains a lake for manufacturing purposes, and which permits and allows employees and the public generally to swim therein, without ' charge, compensation or control, liable in damages for the drowning of a visitor while swimming in the lake? The plaintiff insists that he is entitled to recover upon the theory that his intestate was invited to swim in the lake by virtue of the fact that a diving board had been prepared for the use of the public and a beach provided for swimmers. Consequently it is argued that the defendant under the circumstances, in the exercise of ordinary care, should have kept life guards and life-saving equipment. The general rule is thus expressed in 22 A. L. E., p. 636: “Proprietors of a bathing resort, in discharging the duty of-ordinary care for the safety of patrons, may be obliged to keep someone on duty to -supervise bathers and rescue any apparently- in danger; and may also be held liable for negligence if, on information that a bather is missing, they are tardy in instituting *770 search.” The various aspects of liability imposed by law upon tbe proprietors of bathing resorts are discussed in 22 A. L. R., 635; 38 A. L. R., 359; 53 A. L. R., 855. The preliminary question is: Was the plaintiff an invitee or a licensee? This Court in Jones v. R. R., 199 N. C., p. 1, 153 S. E., 637, said: “An invitee is one who goes upon the property of another by the express or implied invitation of the owner or the person in control. A license implies permission and is more than mere sufferance; an invitation implies solicitation, desire, or request.” Moreover, invitation also implies mutual interest, benefit or advantage. Practically all of the authorities agree that if a jDerson enters upon the premises of another solely and exclusively in pursuit of his own pleasure, or to gratify his own curiosity that he is a licensee. This idea was thus expressed in Money v. Hotel Co., 174 N. C., 508, 93 S. E., 964: “When persons enter a hotel or inn, not as guests, but intent on pleasure or profit to be derived from intercourse with its inmates, they are there, not of right, but under an implied license that the landlord may revoke at any time.” Recovery was denied in Gibbs v. R. R., 200 N. C., 49, 156 S. E., 138, upon the ground that the plaintiff “had no business upon the premises of the railroad company, but sat down upon the platform to wait for trains to pass,” and while sitting there was injured by a gang plank. See, also, Murphy v. Murphy, ante, p. 394. There is no case in this State directly in point, but there are several decisions which by analogy and parity of reasoning, determine the merits of this controversy. For example, in Brooks v. Mills Co., 182 N. C., 719, 110 S. E., 96, the defendant prepared a baseball diamond on its premises and purchased the usual equipment for the use of players and built a grandstand for the amusement and pleasure of its operatives. Admission fees were charged to all games, but the money so paid was used for purchasing balls, bats, gloves and other equipment, no part thereof being paid to the defendants. In denying recovery the Court said: “In fact, the evidence seems conclusively to show that the defendant prepared the ground, purchased playground fixtures, and erected a grandstand for the amusement and recreation of the operatives, but did not receive any pecuniary compensation, or pretend in any way to direct or supervise the game. The ifiaintiff, therefore, can derive no aid from the familiar principle that the owner or lessor of a place of amusement set apart and maintained for his pecuniary benefit is charged with the duty of exercising due care to see that the premises are reasonably safe for the purposes intended.” Discussing the liability of a defendant for the drowning of a boy while swimming upon its premises, in Gurley v. Power Co., 172 N. C., *771 690, 90 S. E., 943, the Court said: “We will not undertake to quote from these decisions. They all deal with the subject under 'discussion' and bold that a pond or reservoir is not a dangerous instrumentality or an attractive nuisance. In almost every case the owner of the premises knew of the custom of boys entering thereon to bathe in the pool or pond, but was held not liable for any mishap. Bathing pools are nothing new or rare. They abound in almost every public park, gymnasium, and Y. M. C. A. building, as well as many country clubs. It is a well known and general custom for boys to swim in millponds and invade the lands of farmers to bathe in their marl pits. Who will contend that the mill owner and farmer are liable for death or injury of the bathers because of such ownership ?” See, also, Phillips v. Orr, 152 N. C., 583, 61 S. E., 1064; Briscoe v. Power Co., 148 N. C., 396, 62 S. E., 600. There is no evidence that the deceased met his death by reason of any defect in the lake. Nor does the testimony disclose any reason for the fact that the young man suddenly cried for help, began fighting the water and went down. Whether he was seized with cramp or sickness is left in doubt. The sole basis for recovery consists in the contention that the defendant should have provided life guards at its own expense, and that if such life guards or life-saving equipment had been available, the life of deceased might have been saved thereby. This testimony creates a legal fog of such low visibility as to prevent the watchful and alert ■ eye of the law from discovering liability for actionable negligence. Therefore, the judgment of nonsuit was properly entered. Affirmed.