Augsburger v. Singer
| Decision Date | 27 November 1968 |
| Docket Number | Gen. No. 68--60 |
| Citation | 242 N.E.2d 436,103 Ill.App.2d 12 |
| Parties | William AUGSBURGER, Plaintiff-Appellant, v. Lou SINGER, also known as Louis Singer and Supreme Divers Ltd., a corporation of Ontario, Canda, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Paul B. Youle, Chicago, for appellant.
Corrigan, Mackay, Quetsch & O'Reilly, Wheaton, for appellees.
The plaintiff, William Augsburger, sought to recover for damages which he alleged he suffered by reason of the defendants' failure to exercise reasonable care. At the time of the injury, he was helping the defendants dismantle their carnival display. At the close of the plaintiff's case, the defendants presented a motion for directed verdict, based upon the ground that the plaintiff was a volunteer, as opposed to an invitee, and that the defendants owed to him only the duty to refrain from wilfully and wantonly injuring him. The trial court agreed and, accordingly, directed a verdict for the defendants. The plaintiff appealed.
The sole issue before this court is whether the trial court was correct in directing a verdict for the defendants upon the ground that the plaintiff's status was that of a volunteer, and that the only duty which the defendants owed to the plaintiff was that of refraining from wilfully and wantonly injuring him.
The facts relevant to this issue are that the defendants owned and displayed a 'Captured Russian Zis Car' in connection with the carnival operation. The car was mounted upon a trailer and the defendant, Singer, operated the display. On the date in question, the display was being closed to move to another town. It was about 9:30 p.m., when the plaintiff and his wife went to the carnival grounds to pick up their son, who was working on the merry-goround. While the plaintiff was waiting for his son to finish his work, he saw the defendant, Singer, dismantling his display and he asked him if he would like some help. Singer answered, 'I sure would' adding, 'I would be glad to pay you.' The plaintiff stated that he answered, He testified that Singer then said, 'I'll be glad to have you.'
The parties agree that if the plaintiff was a 'volunteer' as that term is used in the field of tort law, then the defendants are not liable for any injury received by the plaintiff unless they were guilty of gross negligence, wilfulness, or wantonness. If, however, the plaintiff was an 'invitee'--as that term is used with reference to negligence actions--then the defendants may be liable to the plaintiff if he has suffered injury by reason of the defendants' ordinary negligence.
The plaintiff contends that the fact that the conversation was initiated by him and that he sought no pay for his services, did not necessarily make him a volunteer, as opposed to an invitee. Broadly speaking, an invitee is one who enters upon the premises of another, either at the express or implied invitation of the latter, for a purpose connected with the latter's business or activity carried on upon the premises, or for some purpose serving a mutually beneficial interest. Chicago & Illinois Midland R. Co. v. Pillsbury Mills, Inc., 47 Ill.App.2d 373, 377--380, 198 N.E.2d 126 incl. (1964); Drews v. Mason, 29 Ill.App.2d 269, 279, 172 N.E.2d 383 (1961); 65 C.J.S. Negligence § 63(41), pages 715--719; 28 I.L.P., Negligence, § 52, pages 39--43.
It is sometimes said that to obtain the status of an invitee upon entering the premises of another, there must be a mutuality of benefit or purpose; however, if one enters the premises of another for reasons directly related to the business or activities of the latter, the purpose of the entry is sufficient to render him an invitee.
Thus, in the Drews case, the court held that the jury properly determined that the plaintiff was an invitee in that she had gone to her daughter's (the defendant) house, to help the latter clean up and repair the house after it was damaged by fire. There was no offer or promise of payment to the plaintiff, and the only benefit which she could have received from going to the defendant's house would have been the satisfaction which she derived from assisting and helping her daughter. Likewise, there was no direct invitation or request to the plaintiff to work at her daughter's house. The plaintiff had taken this obligation upon herself. The court held that the status of the plaintiff was properly a question of fact for the jury to determine.
In Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N.E.2d 711 (1958), the defendants' building had caught fire and one of the defendants went across the street to seek help to remove the cash registers from the burning building. The plaintiff, who answered this request, which was without benefit to him, was injured, instituted suit against the defendants and therein obtained judgment against them. On review, the court held that the plaintiff was to be accorded the duty owed to an invitee, and affirmed the judgment of the trial court.
In Cain v. Friend, 171 Cal.App.2d 806, 341 P.2d 753 (1959), the defendants, who had known the plaintiff, a carpenter, for some time, were building an addition to their home. They requested him to come and see them, which he did, and he volunteered to build part of the addition, without pay. The defendants accepted his gratuitous offer, and the plaintiff was injured while doing this work. The trial court granted a motion for a directed verdict for the defendants upon the ground that the plaintiff was a licensee and not an invitee. The reviewing court observed that whether one is an invitee or licensee is normally a question of fact; that it is the purpose for which one enters upon the premises of another that renders him either an invitee or a licensee; that if the purpose is one of common interest or mutual advantage the person is an invitee; and that the status of a licensee is inferred where the purpose is the mere pleasure or benefit of the visitor. The court then pointed out, on pages 754 and 755, that where the services are for the benefit of the occupant of the premises, the fact that they were performed gratuitously does not negative the performer's status as an invitee; and that even where the benefit to the occupant is intangible, the one rendering services may rely upon them to establish his status as an invitee.
The court concluded that there was evidence from which the jury could find that the plaintiff was either expressly or impliedly invited to visit the defendants' premises to perform services beneficial to them, and that he was injured while so-doing. It held that the issue whether or not he was an invitee, should have been determined by the jury.
Likewise, in Murdock v....
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...at 8, 474 N.E.2d at 922; Cerniglia, 160 Ill.App.3d at 576, 113 Ill.Dec. at 14, 514 N.E.2d at 796; see also Augsburger v. Singer, 103 Ill.App.2d 12, 242 N.E.2d 436 (2d Dist.1968); Drews v. Mason, 29 Ill.App.2d 269, 172 N.E.2d 383 (3d Dist.1961); Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N......
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