Ferguson v. Philip Morris, Inc.

MONROE, J. pro tern.* The plaintiffs bring action for damages for personal injuries of the plaintiff Leona B. Ferguson. It is alleged in substance that Mr. and Mrs. Ferguson were the proprietors of a store building and that the individually named defendants were the representatives of the defendant Philip Morris, Inc., which was engaged in the manufacture and distribution of cigarettes. Plaintiffs alleged that although they had permitted the installation of display advertisements in the interior of the store, they had specifically forbidden the defendant company and the individual defendants from attaching any advertisements of any character to the exterior of the building. Plaintiffs alleged that in March, 1956, during their absence, the defendants attached a sign advertising their product to the exterior of the building, and that such act was in violation of their orders and constituted a trespass. It is alleged that the appearance of the sign was such that it appeared to be made of paper or cardboard, but that in fact it was made of sheet metal and that the edges were sharp. When plaintiffs saw the sign attached to the building Mrs. Ferguson was annoyed and attempted to tear it down, with the result that she received cuts which severed tendons in her fingers and resulted in permanent disability to her hand. A demurrer to the complaint was sustained without leave to amend and judgment for defendant entered, and this appeal followed.

The position of the respondents is that the ruling of the trial court was correct because the injury received by plaintiff was not the direct result of the trespass committed but followed as the result of the voluntary act of the plaintiff herself in attempting to tear down the sign. Respondents urge that the damages which may be awarded for trespass are only those which are the direct and immediate result of the trespass itself. Respondents rely largely upon the decision of Mawson v. Vess Beverage Co. (Mo.App., 1943), 173 S.W.2d 606. In that action a similar state of facts was involved. An [607]advertising sign was attached to a building without authority and the act constituted a trespass. A minor child sought to remove the sign from the building, resulting in injuries to the child. Many decisions are reviewed in that case and it was there held that the injuries for which damages were sought were not the immediate result of the trespass, and that no recovery could be had. The Mawson case would be persuasive were it not for the fact that the law has been established to the contrary in the state of California. (Mosley v. Arden Farms Co., 26 Cal.2d 213 [157 P.2d 372, 158 A.L.R. 872].)