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JOYCE ANN HATHORN, WIDOW OF MURTLE LEE HATHORN, DECEASED v. GEORGE L. HAILEY

MAY 07, 1986

JOYCE ANN HATHORN, WIDOW OF MURTLE LEE HATHORN, DECEASED
v.
GEORGE L. HAILEY



BEFORE PATTERSON, C.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

On October 5, 1984, Murtle Lee Hathorn was engaged by George L. Hailey to cut trees on Hailey's property near the Claytown Community in Winston County. Hailey intended to use the cut wood as firewood. As fate would have it, the first

 tree cut by Hathorn fell on a limb," kicked back "and struck Hathorn in the chest and killed him.

 Hathorn's widow thereafter brought a wrongful death action against Hailey. Miss. Code Ann. 11-7-13 (Supp.1985). At trial the evidence reflected without contradiction that Hailey went to the Hathorn home originally seeking to employ Hathorn's son, Cleo, to cut the wood. The elder Hathorn, Murtle Lee, then approximately 65 years old age, was present and volunteered to do the work. Murtle Lee Hathorn was an experienced woodcutter and made this fact known to Hailey, who agreed to pay him $3.35 an hour for his services. In due course thereafter the three went to Hailey's premises and with Hailey and Cleo Hathorn watching from a distance, Murtle Lee cut the first tree which, as indicated, fatally wounded him.

 At the conclusion of the Plaintiff's evidence, the Circuit Judge granted Hailey's motion for a directed verdict and stated

 I have in this instance a case in which a man [Murtle Lee Hathorn] with thirty years experience in wood cutting of some sort, volunteered to go and assist in cutting firewood. He was by agreement an invitee. There has been absolutely no evidence whatsoever that the Defendant [Hailey] in this case either by omission or commission failed to meet every single responsibility that he had as an owner to an invitee. To the contrary, the record indicates that he did everything that one could do, certainly after the accident, and it has not been shown in any degree that he could have done anything more than his son, than the decedent's son who was there at the time, in warning about whatever might have happened in that middle second, that instant, when this tragic accident took place.

 I am going to grant the motion for a directed verdict in this case.

 From final judgment entered in the Circuit Court on April 26, 1985, Plaintiff Joyce Ann Hathorn, widow of Murtle Lee Hathorn, deceased, presents this appeal. We affirm.

 II.

 Plaintiff's first assignment of error is that the Circuit Court erred when it directed a verdict for Hailey. In this context we note that the parties agree that Hathorn was on the Hailey premises as an invitee. The duties owed to invitees by the owners or occupants of premises are well settled. In substance, such persons are obligated to invitees to keep the premises in a reasonably safe and suitable condition and to warn of hidden or concealed perils which the owner or occupant knows or should know of in the exercise of ordinary care. Downs v. Corder, 377 So. 2d 603, 605 (Miss.1979); Wilson v. Allday, ___ So. 2d ___ (Miss. No.56,172, dec. April 16, 1986) (not yet reported); Shows, Trespassers, Licensees and Invitees: Are The Distinctions Neededy, 41 Miss.L.J. 562, 572 (1970).

 The Circuit Court correctly held on these facts that Hailey neither did nor failed to do anything which breached any duty owed to Hathorn. There is no basis in this record for a conclusion that Hailey failed to keep his premises in reasonably safe and suitable condition. He presented Hathron with his land with trees upon it to be cut. Hathorn was not killed by any unreasonably dangerous or unsuitable condition on the land.

 Nothing in this record suggests that there was any hidden or concealed peril of which Hailey knew or should have known and with respect to which he failed to warn Hathorn. All Hailey knew was that he had trees on his land which he desired to have felled and cut up into firewood. Hailey had no reason to believe the fateful tree was any more or less dangerous than any other standing tree.

 In the end Plaintiff's case fails because of her failure to realize that the negligence, if any, contributing to her husband's death was that of her husband himself and himself alone. See Sellens v. Christman, 418 S.W.2d 6, 8-10 (Mo.1967). Hailey had trees he desired cut. He had no expertise in the tree cutting process. Hathorn held himself out as competent and experienced in wood cutting. Absent knowledge of special or hidden dangers, Hailey was under no duty to warn Hathorn of dangers incident to the undertaking and activity with respect to which Hathorn was experienced and ...


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