Clinkscales v. Mundkoski

• Decision Date: 17 May 1938
• Docket Number: Case Number: 27815
• Parties: CLINKSCALES v. MUNDKOSKI et al.
• Court: Oklahoma Supreme Court

1938 OK 336

79 P.2d 562

183 Okla. 12

CLINKSCALES v. MUNDKOSKI et al.

Case Number: 27815

Supreme Court of Oklahoma

Decided: May 17, 1938

Syllabus

¶0 1. NEGLIGENCE--Invitation to Enter Upon Property Either Express or Implied--Implied Invitation Based on Conduct of Owner.

An invitation to enter upon the property of another may be either express or implied; an implied invitation may be manifested by acts or conduct of the owner which afford a reasonable basis for such an implication.

2. SAME--Duty of Owner or Occupant of Premises to Warn Invitees of Dangers.

The owner or occupant who expressly or impliedly invites others to come upon his premises assumes to all who accept the invitation the duty to warn them of any dangers thereon of which he knows, or ought to know, and are unknown to those invited.

Appeal from District Court, Tillman County; John B. Wilson, Judge.

Action by Edith Clinkscales against Otto Mundkoski and others for damages from death of her husband. Plaintiff appeals from order sustaining demurrer to her petition. Reversed in part and affirmed in part.

R. L. Christian and E. F. Lester, for plaintiff in error.

Roe & Roe, for defendants in error.

PHELPS, J.

¶1 The plaintiff in error, Edith Clinkscales, brought this action against Otto Mundkoski, Frank Lawrence, and Fred Varner, defendants in error, to recover damages for the death of her husband. The trial court sustained the separate general demurrers of each of the defendants to Plaintiff's third amended petition, and the plaintiff, electing to stand upon this petition, refused to plead further; whereupon the court rendered judgment in favor of the defendants, dismissing the plaintiff's petition against each of them. The question for our consideration is whether the third amended petition stated a cause of action in favor of the plaintiff against any one or all of the defendants.

¶2 Eliminating the formal allegations, the petition was substantially as follows: That on August 11, 1935, Frank Lawrence and Fred Varner. two of the defendants, were city manager and trustee of the city of Grandfield, respectively, and J. W. Hallmark, not a party to this action, was chief of the fire department of said city, that Otto Mundkoski, the remaining defendant, resided on a farm outside the city limits of Grandfield, and on the date aforesaid he called by telephone and requested and employed the fire department of Grandfield to come to his premises to extinguish a fire; that said Frank Lawrence, Fred Varner, and the other trustees of said city promptly ordered the fire department to go to Mundkoski's farm; that J. W. Hallmark, as fire chief of Grandfield, secured and "pressed into service" the deceased A. C. Clinkscales to assist in extinguishing the fire; that A. C. Clinkscales, driving his own car, followed the fire truck on which defendants Lawrence and Varner rode; that when these parties arrived at the farm Mundkoski was present; that Lawrence and Varner knew the deceased was inexperienced in extinguishing fire and knew, or should have known, that the point where they directed and ordered said A. C. Clinkscales to approach the fire and assist "was dangerous and not a safe place to work, and said Clinkscales was not aware of the dangerous condition"; that Mundkoski, cooperating with the other defendants in the employment of Clinkscales, knew that said Lawrence and Varner had directed Clinkscales to a dangerous and unsafe place and also knew that Clinkscales was not aware of the great danger at that particular point; that although defendant Mundkoski knew the danger, and knew that it was unknown to Clinkscales, he failed, neglected, and refused to inform said Clinkscales; that Mundkoski, after employing, inviting, and accepting the services of said Clinkscales, Instructed and directed the deceased in the performance of his services in extinguishing the fire; that among other property on said premises was a truck or trailer on which were two 50-gallon barrels containing gasoline; that a building and certain other material near said truck or trailer was burnIng and Clinkscales was assisting to extinguish it; that while so engaged, Mundkoski, well knowing that the barrels were filled with highly explosive gasoline. willfully, wantonly, and with culpable negligence and in order that said Clinkscales might better serve said defendant in protecting his property, directed deceased to quit pouring water on the fire near the truck or trailer and turn the water on the barn, which contained oats. stating that there was not any gasoline in the barrels or containers resting on the trucks; that relying thereon. Clinkscales moved nearer the fire and closer to the barrels of gasoline and began placing Me water on the barn as directed by Mundkoski; that shortly thereafter the beat of the fire caused the gasoline to explode, throwing the burning gasoline upon said A. C. Clinkscales, causing Injuries of which he died. The gasoline barrels had contained gasoline, instead of being empty, as represented to deceased by Mundkoski.

¶3 A general demurrer admits the truth of all the facts which are properly pleaded in the petition, and the petition must be liberally construed and all such facts must be taken as true for the purposes of the demurrer. Schuman v. Williams, 176 Okla. 420, 57 P.2d 821.

¶4 The deceased was not a municipal fireman performing his duty within the city limits of the municipality employing him; consequently we may omit discussion of the authorities upon that proposition.

¶5 We shall...