Coburn v. Village of Swanton

• Decision Date: 04 October 1921
• Citation: 115 A. 153,95 Vt. 320
• Parties: IRVING E. COBURN v. VILLAGE OF SWANTON
• Court: Vermont Supreme Court

115 A. 153

95 Vt. 320

IRVING E. COBURN v. VILLAGE OF SWANTON

Supreme Court of Vermont

October 4, 1921

February Term, 1921.

ACTION OF TORT for negligence. Heard on defendant's demurrer to the amended complaint at the September Term, 1920, Franklin County, Stanton, J., presiding. Judgment, pro forma overruling the demurrer and adjudging the complaint sufficient. The defendant excepted. The opinion states the case.

Affirmed and remanded.

F L. Webster and D. G. Furman for the defendant.

D W. Steele and Elmer Johnson for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and CHASE, Supr. J.

OPINION

TAYLOR

This case has once before been here on a question of pleading. It was then heard below on demurrer to the complaint, and came here on plaintiff's exception to the judgment sustaining the demurrer. This judgment was affirmed, and the cause remanded with leave to apply. Coburn v. Village of Swanton, 94 Vt. 168, 109 A. 854. An amended complaint was thereupon filed, to which the defendant demurred. The demurrer was overruled pro forma without hearing, and the cause passed to this Court before trial on the defendant's exception.

The main question raised by the demurrer, as at the former hearing, is whether it appears from the complaint that at the time of the injury the plaintiff was at the place of the accident by the invitation of the defendant, express or implied. The plaintiff has undertaken by amendments to supply the shortage in this regard found in the original complaint. In other respects the allegations are substantially the same, and are sufficiently stated in the former opinion. Bearing upon the question at issue, it is now alleged that at the time of plaintiff's injury defendant's power house was operated continuously, and was in charge of one of three employees who worked different shifts, only one of whom as a rule was on duty at any time, and who, when so alone on duty, had full charge of the plant. After setting forth the defects complained of, the attendant dangers, and the duty of the defendant to exercise active care to warn the plaintiff thereof and keep him outside the power house, it is alleged that the defendant did not perform its duty in that regard, but, on the contrary, before and on the day of the injury to the plaintiff "by word of mouth to the plaintiff spoken, and otherwise, requested, lured, and induced the plaintiff to go upon said premises into said power house," to the place where the accident occurred, at the time and for the purpose for which the plaintiff was within the power house at the time of his injury. Then follow several paragraphs of the complaint, in which the facts relied upon as a basis of an invitation are stated at considerable length. The allegations are in substance these: One of the three employees, Barr by name, had for several months before the plaintiff's injury been working a shift that called him on duty at twelve o'clock midnight and kept him on duty until twelve o'clock noon the day following. The character of his work and the rules of the defendant required him to be constantly at his post during the hours of his shift. While on duty, Barr had full charge and supervision of the power house and plant, with full authority from the defendant to admit the plaintiff on behalf of the defendant to the part of the power house where he received his injury, at the time and for the purpose for which the plaintiff was then within the power house. It was to the interest and advantage of the defendant that Barr, while on duty, should have suitable food and drink carried to him each morning. There was no food kept on or near the defendant's premises, and the only way that Barr could be supplied with the necessary and suitable warm food and drink for his mid-shift meal, while on duty, was to have such meal carried to him, all of which was well known to the defendant.

It is then alleged in separate paragraphs that on divers times before plaintiff's injury (1) the defendant, acting through its duly qualified agents and employees, and (2) the said Barr, acting within the scope of his employment as the servant of the defendant and in the exercise of the power and authority given to him by the defendant already alleged, by word of mouth requested the plaintiff to carry food and drink to Barr each morning while he was working his shift, including the morning of the injury. Then follow allegations that for several weeks, including the day of his injury, the plaintiff who was then a boy of about twelve years of age, "did, by reason of, and in acceptance of said solicitations, requests, and invitations of the defendant and the defendant's said servant made to the plaintiff as aforesaid, and with the knowledge and approval of the defendant, carry the defendant's servant Barr necessary, suitable, and proper warm food and drink for his mid-shift meal each morning that said Barr was on duty," etc. The previous allegations are then summed up in a paragraph concluding with a statement of the circumstances of the accident.

The ultimate question of the defendant's liability is whether the facts alleged show that the defendant owed the plaintiff the duty of active care; and this, in turn, depends upon whether the latter was at the place of the accident by the invitation of the defendant, express or implied. In the original complaint there was no allegation of an express invitation, and we held that an invitation could not be implied from the facts then alleged, as it did not appear that the purpose for which he entered the premises was one of interest or advantage to the defendant, without which it could not be inferred that he was there as an invitee and not as a licensee. Plaintiff now undertakes to allege an express invitation. He contends that such an invitation is sufficiently alleged, and that, if established, the allegations respecting the purpose of his visit become immaterial, as it is only when the invitation is sought to be implied that it becomes necessary to show that the purpose of the visit was one of interest or advantage to the defendant. That is to say, if on trial it should be shown, as alleged, that the defendant acting through a duly authorized representative expressly requested the plaintiff to deliver Barr's breakfast to him at the time and place of the accident, the duty of exercising active care for his safety while so doing would necessarily follow. The defendant does not controvert the soundness of this proposition, but relies upon the claim that an express invitation is not properly alleged. Therefore it is unnecessary for present purposes to inquire whether the status of one expressly invited is affected by the purpose of the invitation.

The point is made that the allegations to the effect that the defendant "requested, lured, and induced" ...