Chichas v. Foley Bros. Grocery Co.
| Decision Date | 22 June 1925 |
| Docket Number | 5711. |
| Parties | CHICHAS v. FOLEY BROS. GROCERY CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Robert C. Stong Judge.
Action by Thomas Chichas against the Foley Bros. Grocery Company and another. Verdict for plaintiff, on which judgment was entered. From an order granting defendants' motion for new trial, plaintiff appeals. Reversed and remanded.
H. C Crippen and F. G. Huntington, both of Billings, for appellant.
Johnston Coleman & Johnston, of Billings, for respondents.
In this case the plaintiff seeks to recover damages for personal injuries sustained by him in the city of Billings, on December 24, 1923, by reason of falling through an open elevator shaft maintained by the defendants in a building which was occupied by them. By his complaint he alleges both general and special damages aggregating $23,158.67. On issue joined, the case was tried to a jury, which returned a general verdict in plaintiff's favor, assessing his damages at $6,158.67, upon which judgment was duly entered. Upon defendants' motion, a new trial was ordered by the court, and the appeal is from the order.
The only question is whether the court was in error in granting a new trial. The order is predicated upon a determination made by the trial judge that the plaintiff was a licensee upon the defendants' premises at the time of the accident, rather than an invitee. In the condition of the record, we have before us only the abstract proposition as to the defendants' liability to respond in damages in the proper application of the law to the facts. To ascertain the correctness of the court's conclusion, it is necessary to make careful review of all of the evidence. This we have done, and therefrom substantially the following facts appear:
The defendant company is engaged in wholesale grocery business in Billings, and Lester G. Punch is its manager in charge. Its business is conducted on Second Avenue North, in a brick building consisting of a basement, main floor, and second floor, wherein a freight elevator is installed and maintained running from the basement to the second floor. To enable the elevator to pass from the basement to the second floor and to be used on the main floor, an opening is provided approximately 9 feet square, situated about 27 feet from the rear entrance to the building, and about equidistant from the side walls thereof. At the time of the accident, the elevator shaft was not guarded by a railing or gates, and, although such a safety device was provided, the gates were raised and not in place at the time.
The plaintiff, together with his brother, was, and for a long time had been, engaged in the retail grocery business in the city of Billings, and was a steady customer of the defendants in the purchase of groceries and supplies from them. In his dealings with the defendants he had been accustomed to send an employee with a truck to the defendants' place of business to obtain such groceries and supplies as were needed in his retail establishment from time to time, and, prior to the date of his injury, he had never visited the defendants' establishment, although expressly invited by the defendants' manager to call at their place of business. On the morning of December 24, 1923, about 9 o'clock, being in need of supplies, the plaintiff drove an automobile in an easterly direction to the rear entrance of defendants' building, and stopped at a platform connected therewith, from which a door provided an entrance into the building; that being the west entrance of the building on the main floor. From his viewpoint as he approached the building he could see no other entrance. He alighted from his automobile, and by means of a plank there provided walked up onto the platform, which was elevated about 4 feet from the ground, entered the door, and then proceeded forward inside the building, along a passageway between stored merchandise, which was not well lighted, in ignorance of the existence of the unguarded elevator shaft, into which he fell and dropped a distance of about 10 feet to a cement floor in the basement, sutaining very serious bodily injury and shock to his nervous system, which caused him to be confined in a hospital in Billings for a period of 2 1/2 months, and to sell out and discontinue his grocery business.
The office of the defendant company was located on the north side of the building, and there was a cement sidewalk along that side of the building, and trucks or wagons there loaded with supplies were required to back up over the sidewalk. The west or rear entrance of the building was utilized by the company in receiving and discharging freight. Over this entrance there appeared a sign reading, "Foley Bros. Grocery Co.," and there was no other sign by the door indicating to patrons that this entrance was not for use by others than employés of the defendant company. Ninety per cent. of the business conducted by the defendant corporation was transacted by telephone orders, given or on solicitation of its salesmen, and ten per cent. thereof was done at its place of business, where patrons called and made purchases or placed orders for goods in person. One of the employés of the plaintiff, who visited the defendants' place of business almost every day in procuring supplies for the plaintiff, had occasionally used the rear or west door in entering and leaving the building, as did others, without any objection being made at any time by the employés of the defendant corporation.
In this field of the law as to liability for negligence, the decisions are numerous, but in each case the particular fact features control as to the proper category in which it must be placed in application of well-settled principles. The general rule deducible from the authorities, and of which we voice approval, is clearly stated in 20 R. C. L. p. 66, as follows:
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