Chamberlain v. Haanpaa

• Decision Date: 19 July 1965
• Docket Number: No. 3,No. C,C,3
• Citation: 1 Mich.App. 303,136 N.W.2d 32
• Parties: Tollcott L. CHAMBERLAIN, Plaintiff-Appellee, v. Wesley HAANPAA, Defendant-Appellant, Oiva Niemi and Waino Juntunen, Defendants-Appellees. al. 252
• Court: Court of Appeal of Michigan — District of US

Page 32

136 N.W.2d 32

1 Mich.App. 303

Tollcott L. CHAMBERLAIN, Plaintiff-Appellee, v. Wesley HAANPAA, Defendant-Appellant, Oiva Niemi and Waino Juntunen, Defendants-Appellees.

No. Cal. 252.

Court of Appeals of Michigan, Division No. 3.

July 19, 1965.

Humphrey & Weis, Ironwood, for appellant.

Walsh & Munro, Ontonagon, for Chamberlain.

Santini & Jacobs, Ironwood, for Juntunen and Niemi.

Before J. H. GILLIS, P. J., and McGREGOR and WATTS, JJ.

WATTS, Judge.

This is a civil action brought by plaintiff Tollcott L. Chamberlain against Wesley Haanpaa, Oiva Niemi and Waino Juntunen for personal injuries sustained while loading a large bull into a truck. Verdict and judgment for plaintiff against defendant Haanpaa; defendant Haanpaa appeals.

Plaintiff and defendant Haanpaa were experienced livestock haulers who had worked together on several occasions assisting one another in the loading of livestock. While plaintiff was waiting for the loading facilities at Bruces Crossing stockyard, defendant Haanpaa requested plaintiff to give a hand in the loading of two bulls. The first bull had been delivered by plaintiff to the stockyard, blindfolded, haltered, and roped. The second bull had been delivered by defendant Haanpaa to the stockyard, not blindfolded, haltered, or roped. The animal had a 16' 10' chain around his neck to which defendant Haanpaa had tied a 40' rope. Plaintiff led the second bull to the loading facilities after defendant Haanpaa had advised him that the bull was ready for loading. ¹

On the day of the accident, the usual procedure for loading large animals was not followed by defendant Haanpaa in the loading of the second bull. He had tied a rope to a chain which had been placed around the bull's neck. Plaintiff took hold of the free end of the rope and led the animal up the ramp and put the free end of the rope through the slot in the truck. Defendant Haanpaa was unable to restrain the bull from attacking plaintiff because the knot in the rope was too large to pass through the slot in the truck; plaintiff was injured in the attack.

Plaintiff testified, 'Well, there was times that I came to the yard and I needed help, and if I help Haanpaa, I figure that eventually he would help me; and that was a natural agreement, so if I asked him to help me, we naturally had to have help because there was no hired help at the yard whatever.' Plaintiff further testified that he discovered the second bull was neither haltered nor blindfolded when the knot tied by defendant Haanpaa failed to pass through the slot. He further testified that the day of the accident was the first time he had seen a large animal loaded with a rope tied to a chain.

Plaintiff claims that defendant Haanpaa breached his duty to plaintiff in failing to properly halter the bull and in failing to form a knot which would pass through the slot in the truck, and that the failure of defendant to take the proper precautions for a reasonably safe loading of large livestock was the proximate cause of plaintiff's injuries.

Defendant Haanpaa denies negligence and contends that plaintiff was negligent and that plaintiff volunteered his services, and therefore he owed no duty other than not to injure plaintiff by willful and wanton acts.

Defendant Haanpaa's contention that plaintiff was a mere volunteer is not substantiated by the record. The evidence is undisputed that defendant Haanpaa requested plaintiff to give a hand in loading livestock and, further, that plaintiff had an interest ² in the work of assisting defendant Haanpaa in the loading of livestock.

Several of the cases upon which defendant Haanpaa relies are distinguishable on the facts and do not involve an express invitation to give assistance coupled with an interest in the work. Waltanen v. Wiitala (1960), 361 Mich. 504, 105 N.W.2d 400; Cheney v. Olender (1942), 303 Mich. 129, 5 N.W.2d 692; Powell v. Twin Drilling Co. (1942), 300 Mich. 566, 2 N.W.2d 505; Diefenback v. Great Atlantic & Pacific Tea Co. (1937), 280 Mich. 507, 273 N.W. 783; and Wojewoda v. Rybarczyk (1929), 246 Mich. 641, 225 N.W. 555.

Justice SOURIS, writing the majority opinion in Felgner v. Anderson (1965), 375 Mich. 23, 56, 133 N.W.2d 136, 154 said:

'The cases * * * including Waltanen v. Wiitala, 361 Mich. 504, 105 N.W.2d 400, and all other cases decided by this Court in which the doctrine of assumption of risk or its language has been used improperly as determined in the foregoing opinion, hereby are overruled.

'The trial judge's refusal to charge the jury on assumption of risk as defendant requested him to do was not error.'

The opinion of the Court in Pace v. Gibson (1959), 357 Mich. 315, 324, 98 N.W.2d 654, 659 stated:

'In the instant case the testimony of the plaintiff fairly discloses that he and his employer were interested in the unloading of the merchandise. Said employer was engaged as a common carrier in the transportation and delivery of freight by motor truck. It was to its interest that the equipment operated by plaintiff should be unloaded to the end that it would be available for other transportation, and that the merchandise be delivered to the consignee. Plaintiff was also interested in turning the merchandise over to the consignee in lieu of hauling it back to the terminal an taking action to have it delivered by another facility. We have, in consequence, a situation in which plaintiff and his employer as well as the defendants were interested in the unloading of the boxes or crates. In view of the testimony to the effect that defendants authorized and induced plaintiff to assist in the unloading operation, we are not here concerned with the question * * * as to the authority of an agent or employee enlisting the aid of another.

'Under the circumstances here presented it cannot be said as a matter of law that plaintiff was a mere volunteer. He did not, in consequence, assume the risk of being injured by ordinary negligence on the part of defendant or his employee, and may not be charged with contributory negligence on such basis. In viewing the situation, we have in mind the general rule that the testimony must be construed as strongly as reasonably possible in favor of the plaintiff.

'Neither may it be said as a matter of law, on the basis of his conduct as shown by his testimony, that plaintiff failed to establish his freedom from contributory negligence. Under the circumstances defendant owed him the duty of exercising ordinary care for his safety. He had a right to rely on the instructions that defendant had given as to the method that should be followed in unloading the crates, and to assume that defendant and his employee would be governed accordingly. He was not required to anticipate that either, or both, would suddenly release his hold on the crate or box without a proper warning to him, thereby permitting the crate to slide against him with the resulting injury. Hunter v. Baldwin, 268 Mich. 106, 255 N.W. 431; Kavigian v. Lonero, 312 Mass. 603, 45 N.W.2d 823. See, also, Klein v. Detroit Metallic Casket Company, 336 Mich. 157, 57 N.W.2d 477.'

In Johnson v. E. C. Clark Motor Co. (1912), 173 Mich. 277, 289, 139 N.W. 30, 34, 44 L.R.A.,N.S., 830, Justice Stone quoting from Kelly v. Tyra, 103 Minn. 176, 114 N.W. 750, 115 N.W. 636, 17 L.R.A., N.S., 334 in which Jaggard, J., says:

"There is, however, an increasing class of cases in which the exercise of proportionate care is held to be due to servants of different masters, who assist in the performance of a service mutually beneficial to such employers. Thus a servant of a shipper, who, to prevent delay, aids the servant of a carrier in shunting cars, is not a mere volunteer assisting defendant's servants, although on request, but is regarded as having been on defendant's premises with a purpose of expediting the delivery of his own goods. The carrier is liable to him for the negligence of its servants. [Citing cases.] * * * So one with an interest, who is requested by another's servant to assist in adjusting or fixing an instrumentality is not a mere volunteer, but is within the rule requiring the exercise of due care. [Citing cases.]

"'The distinction running through...