Le Compte v. Wardell

Decision Date28 January 1959
Docket NumberNo. 9790,9790
Citation134 Mont. 490,333 P.2d 1028
PartiesVetal LE COMPTE, Plaintiff and Respondent, v. Albert WARDELL, a corporation, and John Chevallier, Defendants and Appellants.
CourtMontana Supreme Court

Paul T. Keller, Melvin E. Magnuson, Helena, argued orally, for appellant.

Ralph J. Anderson, Stanley P. Sorenson, Helena, Ralph J. Anderson, argued orally, for respondent.

ANGSTMAN, Justice.

Defendants appeal from a judgment entered on a verdict in favor of plaintiff in the sum of $35,000 for damages from injuries suffered by him as a result of alleged negligence on the part of defendants.

The complaint alleges that defendant Albert Wardell, a corporation, was engaged in the construction of the new telephone building at the southeast corner of Placer and Park Streets in the City of Helena and maintained a hoist, scaffolding and other equipment in placing the brick veneer upon the building; that the hoist was used by Superior Steel Contractors, a corporation, and its employees, engaged in placing iron and steel around the windows and walls in connection with the bricklaying, with the knowledge and consent of the defendant corporation; that plaintiff was employed as an ironworker by Superior Steel Contractors; that on June 24, 1954, when plaintiff was in the hoist and descending from the top level an employee of defendant Wardell corporation, who was later identified by plaintiff as defendant Chevallier, while acting in the course and scope of his employment, negligently, carelessly and recklessly pushed or placed some object across the shaft of the hoist; that the hoist struck the object with great force and violence so as to cause a failure or malfunction in the mechanism of the hoist of a nature unknown to plaintiff, causing the hoist to fall from approximately the top level of the building to the ground level and thereby injuring plaintiff; that the negligence of the defendant Wardell corporation and its employees was the proximate cause of the injuries to plaintiff.

Defendants contend that the complaint does not state facts sufficient to constitute a cause of action and that the court erred in not sustaining their separate general demurrers to the complaint. Specifically defendants contend that at most the complaint shows that plaintiff was a licensee in the use of the hoist and that to constitute a cause of action it was incumbent upon him to plead that the negligence of defendants was wanton or willful and since this was not done the complaint is insufficient. Defendants contend that under the rule of McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344; Montague v. Hanson, 38 Mont. 376, 99 P. 1063; Chichas v. Foley Bros. Grocery Co., 73 Mont. 575, 236 P. 361; and other cases, the only duty owing to a licensee is that of refraining from doing him willful or wanton injury.

It should be borne in mind that if the complaint states facts sufficient to constitute a cause of action upon any theory, the general demurrer should be overruled. Magelo v. Roundup Coal Mining Co., 109 Mont. 293, 96 P.2d 932.

Plaintiff contends that the complaint is sufficient upon the theory of willful and wanton negligence, because of the active negligence rule. That rule is stated in Prosser on Torts (1941), page 630 as follows:

'Some courts have gone so far as to say that there is no duty to a licensee other than to refrain from inflicting willful or wanton injury upon him. As in the case of trespassers, however, an increasing regard for human safety has led to a retreat from this position. It is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee.'

The supreme court of Nevada speaking on this point in Babcock & Wilcox Co. v. Nolton, 58 Nev. 133, 71 P.2d 1051, 1054, said: 'The great weight of authority is to the effect that a person guilty of active negligence, as distinguished from passive negligence, is liable for resulting injury to a licensee.'

This rule is well established. See Oettinger v. Stewart, 24 Cal.2d 133, 148 P.2d 19, 156 A.L.R. 1221; Smith v. General Petroleum Company, Cal.App.1958, 324 P.2d 44; Demmon v. Smith, 58 Cal.App.2d 425, 136 P.2d 660; Garstka v. Republic Steel Corp., 294 Mich. 387, 293 N.W. 691; Boggus Motor Co. v. Standridge, Tex.Civ.App.1940, 138 S.W.2d 643; Roadman v. C. E. Johnson Motor Sales, 210 Minn. 59, 297 N.W. 166; Oklahoma Biltmore, Inc. v. Williams, 182 Okl. 574, 79 P.2d 202; 38 Am.Jur., Negligence, Sec. 104, p. 765; and Restatement, Torts, Sec. 341.

When the complaint shows the surrounding facts and circumstances and they are such that certain negligent conduct will naturally or probably result in injury there is then sufficient charge of wanton conduct as to constitute a cause of action for wanton negligence though the word 'wanton' was not used. Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980; 38 Am.Jur., Negligence, Sec. 48, p. 692.

In 38 Am.Jur., Negligence, Sec. 178, pp. 855, 856, it is said: 'A defendant's act is properly characterized as willful, wanton, or reckless, within the meaning of the foregoing rule, only when it was apparent, or reasonably should have been apparent, to the defendant that the result was likely to prove disastrous to the plaintiff, and he acted with such an indifference toward, or utter disregard of, such a consequence that it can be said he was willing to perpetrate it.'

The complaint states facts sufficient to constitute a cause of action based on wanton negligence although the precise word 'wanton' was not employed.

Defendants contend that the court erred in denying motions for nonsuit and for a directed verdict.

The evidence was sufficient to warrant submission of the case to the jury and to warrant its determination of the issues in favor of plaintiff. The evidence of course must be viewed from the standpoint most favorable to the prevailing party, and every fact must be deemed proved which the evidence tends to prove. Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49. Likewise on motion for nonsuit or directed verdict plaintiff is entitled to the benefit of whatever his testimony tends to prove, even though his own witnesses may contradict each other. Hardie v. Peterson, 86 Mont. 150, 282 P. 494; Federal Land Bank of Spokane v. Green, 108 Mont. 56, 90 P.2d 489; Lake v. Webber, 120 Mont. 534, 188 P.2d 416; Gobel v. Rinio, 122 Mont. 235, 200 P.2d 700; McCollum v. O'Neill, 128 Mont. 584, 281 P.2d 493. Defendants contend that at most plaintiff's evidence shows that plaintiff and the steelworkers requested and obtained permission to use the hoist to take up the torch used by the steelworkers but that no permission was obtained to use it for returning a chalk line which plaintiff was doing when he was injured. The evidence briefly summarized was as follows:

LaFollette, who had charge of the brickwork on the building at the time of the accident, testified that permission was given the employees of Superior Steel to use Wardell's scaffolding when they placed the ribbon of steel around the building; that it was necessary to put the steel up before the brick could be laid; that on the morning of the accident the foreman of the general contractor telephoned Superior Steel Contractors to come and put up some steel and when they came the foreman, Charles Vann, requested and was given permission to send the torch up on the hoist, which had been done on two or three other occasions; that Wardell employees used the hoist to take up brick and mortar; that when he heard the noise of the accident he went to the hoist and found plaintiff lying on the ground; that the cable on the hoist was cut in two and was swarmed around the drum; that there had to be slack in the cable to cause it to swarm.

Charles Vann, who was the foreman for Superior Steel, testified that on the day of the accident he and his crew went to the telephone building to install the lintels; that the ironworkers were using the scaffolding with permission whenever the bricklayers reached an elevation where the steel was to be placed; that he secured permission from LaFollette who was in charge for Wardell at that time to use the hoist to take up the burning equipment and tanks consisting of oxygen and acetylene tanks, hose and torch; that the witness, plaintiff, and another ironworker Sewell, rode up to the top with the equipment and put it on the scaffold deck; that he thought plaintiff and Sewell used the hoist to bring up some steel; that at the time of the accident he was laying out the line for the lintels and plaintiff was returning a chalk line which he had borrowed for the witness from one of the carpenters; that he had handed the chalk line to Sewell who in turn handed it to plaintiff as he was the one who borrowed it and knew to whom it should be returned; that the next thing he knew the plaintiff had fallen; that the cable was off the drum and was cut.

On cross-examination Vann testified ...

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