Bogart v. Hester

• Decision Date: 25 November 1959
• Docket Number: No. 6439,6439
• Citation: 1959 NMSC 98,66 N.M. 311,347 P.2d 327
• Parties: Harold L. BOGART, Plaintiff-Appellant, v. Evelyn HESTER, Administratrix of the Estate of E. L. Hester, deceased, d/b/a Hester Mud Company and American Tank and Steel Company and James C. Engelbrecht, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 327

347 P.2d 327

66 N.M. 311

Harold L. BOGART, Plaintiff-Appellant, v. Evelyn HESTER, Administratrix of the Estate of E. L. Hester,

deceased, d/b/a Hester Mud Company and American

Tank and Steel Company and James C.

Engelbrecht, Defendants-Appellees.

No. 6439.

Supreme Court of New Mexico.

Nov. 25, 1959.

Rehearing Denied Dec. 23, 1959.

McAtee, Toulouse & Marchiondo, B. J. Stephens, Albuquerque, for appellant.

Brown & Wood, Farmington, for American Tank & Steel and Engelbrecht.

Seth, Montgomery, Federici & Andrews, Santa Fe, for Hester Mud Co.

JOHN R. BRAND, District Judge.

Plaintiff Harold L. (Louie) Bogart lived at Farmington about a block from the premises of Hester Mud Company, for whom he had formerly worked. His uncle, Carl Rucker, was employed by Hester Mud Company as a foreman, and lived on the Mud Company yard. On the day of the accident, Bogart, who often visited his uncle, to the knowledge of Mr. Hester, went to the mud yard to borrow a tool from his uncle with which to repair an airconditioner at his house. While there talking to the uncle, the defendant James Engelbrecht, a truck driver for defendant American Tank & Steel Company, entered the shop where they were and asked Rucker if he would help him load the tank, for which he had been sent, onto the truck. The tank belonged to Hester and was to be returned to American Tank to have skids attached to it. Rucker, agreeing to assist in the loading, went with Engelbrecht, and plaintiff and several others followed and sat down near the tank to watch the loading operation. Among the spectators was one Lobato, another of Hester's employees.

Sometime previously, Rucker had built a chain hoist to be used in the mud yard for lifting heavy objects, and it had been used in loading tanks such as was to be done in this case. The hoist was hung on rollers and was not level, being lower at one end, so that when an object was lifted it would move or travel to the low end unless prevented.

Rucker prepared to lift the tank by placing a steel crossarm attached to the hoist through the manhole in the top of the tank and then climbed onto an adjacent tank and commenced raising the one to be loaded. Engelbrecht started his truck motor and prepared to back under the tank when it was lifted high enough to allow his truck to be placed beneath it. Before the tank was in proper position, however, it started to travel to the low end of the hoist and toward Rucker. He, seeing that unless stopped it would move so close to him as to prevent him from controlling it, cried, 'Louie, give me a hand!', whereupon plaintiff (Louie) sprang to help. He grasped the tank to steady it, and at that instant the crossarm by which it was suspended disengaged, the tank dropped and pinned plaintiff against a nearby parked truck, causing him bodily injuries.

Plaintiff brought this action for damages claiming that he was invited onto the premises; that Rucker, in the scope of his employment for Hester, requested his assistance in loading the tack; that Engelbrecht also requested his assistance, and that he volunteered to assist; that Hester Mud Company was negligent in the method by which the tank was rigged to be hoisted, and that its employee Rucker negligently operated the hoist; that Engelbrecht was negligent in backing his truck into the tank and causing it to fall while it was being hoisted, and that American Tank is liable for his negligence. Plaintiff later filed an affidavit in which he asserted that he knew that the hoist being used had been faultily installed, in that one end was lower than the other; and that the bar to be inserted in the opening in the bank was too short for such purpose, and was inadequate. Bogart had previously used this hoist in loading tanks which working for Hester.

In separate answers the defendants denied their negligence, claimed contributory negligence, assumption of risk, and status of plaintiff as a trespasser. The depositions of plaintiff Bogart, his uncle Rucker and the truck driver Engelbrecht were taken, and defendants then filed motions for summary judgment, asserting that at the time of the injury plaintiff was on the mud company premises as a trespasser or bare licensee and, as such, the only duty owed to him by defendants was that of not wilfully or wantonly causing him injury; that the amended complaint did not allege any wilful or wanton acts of negligence.

The court granted summary judgment and dismissed the complaint, from which order this appeal was taken.

That summary judgment was properly resorted to is evident, since the depositions and pleadings raise no issuable question of fact material to a determination of the controversy. It is not clear what caused the tank to become disengaged from the bar with which it was being lifted, and this could have been caused either by the bar being too short, the hoist being unlevel, the carelessness of Rucker in operating the hoist, the truck bumping the tank while it was suspended, or a combination of these factors. It is conceivable also that it was caused by plaintiff's action in halting its movement suddenly. It may be assumed, however, for our purpose that either one or more or all the defendants were guilty of negligence which caused the injury, and that plaintiff was free of contributory negligence at the time of the accident. It may be conceded that plaintiff's status was that of 'licensee' instead of trespasser.

What then are the undisputed facts which led to plaintiff's injury? He was watching the attempt to load the tank on the truck. He had no interest in the operation or the business at hand. He was a mere spectator. Suddenly his uncle requests his assistance, although there was a workman of Hester's also watching the work, and without hesitation he hastens to assist and is injured while in the act of helping his uncle control the moving tank. Whether he be called trespasser, licensee or invitee becomes of no consequence because his status for the purpose of our inquiry was that of 'volunteer'. The fact that he was asked (invited) by Rucker to help does not alter the situation. Rucker had no authority, express or implied, to put him to work, or to invite his assistance so as to make him a temporary employee. No emergency existed (and none is claimed) which could have given him authority to do so.

Bernhardt v. American Ry. Exp. Co., 218 App.Div. 195, 218 N.Y.S. 123, 125. 'We have, then, the simple question of the liability of a master for the act of a servant to one assisting the latter by unauthorized invitation, where the injury occurred during the performance of a detail of the work. There seems to be little, if any, distinction between the nature of the duty owed to a person assisting by invitation and that owed to a pure volunteer. The plaintiff, under the circumstances here, cannot place himself in a better legal position than the servant with whom he works. Langan v. Tyler, [2 Cir.] 114 F. 716, 718, 51 C.C.A. 503. The master is no more liable to him for the servant's negligence than he would be to the servant for the plaintiff's negligence. The defendant had no knowledge of the situation which arose, and could not well have anticipated what happened. The servant, by invitation or by acceptance of volunteered assistance, could impose no new or greater obligation on the master than that which the master owed to him. Nor could the invitee or volunteer create a new or greater liability by his act. The authorities sustain the principle of nonliability under such circumstances.' (Emphasis ours.)

Plaintiff (appellant) urges reversal under only one point, in this language:

'The Court erred in granting summary judgment in that the evidence taken in the light most favorable to appellant shows that appellees were actively negligent resulting in injury to appellant at which time appellees owed appellant a duty to use ordinary and reasonable care for his protection.

'A. Appellant was not a trespasser at time of injury.

'B. Appellant was an invitee at time of injury.

'C. Regardless of his status as licensee or invitee at time of injury, appellees owed appellant the duty of reasonable care at that time.'

We agree that appellant was not a trespasser, and feel that his status was that of licensee prior to the time he volunteered to assist Rucker in the work. Appellant says, however, that he became an 'invitee' when Rucker requested his assistance, or invited him to help load the tank. That assertion has been answered--no invitation was given by Hester, the owner, but by Rucker, the foreman, who had no authority to do so.

As to the argument that defendants owed plaintiff the duty of reasonable care at the time, and were actively negligent, and hence liable, we find no support in the authorities for this proposition. There are some cases which draw a distinction between active and passive negligence involving injuries suffered by licensees and trespassers, but a reading of them will disclose facts which differ from the instant matter. See Lucas v. Walker, 22 Cal.App. 296, 300, 134 P. 374, 376, where it was said:

'But if it be conceded that plaintiff was a mere licensee of defendant when he was hurt, it is still true that he was upon the premises and doing the work in question with the knowledge and consent of defendant. * * * A licensee under such circumstances is entitled to recover for any injury to himself, in the absence of contributory negligence upon his part, resulting from the active negligence of the licensor, and such licensor is responsible in damages for any overt act of negligence, though the same be neither willful nor wanton.'

Other California cases cited on this point are Gay v. Cadwallader-Gibson Co., 34 Cal.App.2d 566, 93 P.2d 1051; Boucher v. American Bridge Co., 1950, 95 Cal.App.2d 659, 213 P.2d 537; and Newman v. Fox West Coast Theatres, 1948, 86 Cal.App.2d 428, 194 P.2d 706.

One can be held liable for negligence only where he has failed to observe that...