Cunag v. McCarthy

• Decision Date: 27 May 1963
• Docket Number: Gen. No. 48877
• Citation: 42 Ill.App.2d 36,191 N.E.2d 404
• Parties: Peter J. CUNAG, Appellee, v. Mark A. McCARTHY, Appellant.
• Court: United States Appellate Court of Illinois

Page 404

191 N.E.2d 404

42 Ill.App.2d 36

Peter J. CUNAG, Appellee, v. Mark A. McCARTHY, Appellant.

Gen. No. 48877.

Appellate Court of Illinois, First District, First Division.

May 27, 1963.

Beverly & Pause, Chicago, Robert O. Duffy, Frank J. Pause, Chicago, of counsel, for appellant.

Romano, Rice & O'Brien, Chicago, James B. Rice, Chicago, of counsel, for appellee.

MURPHY, Justice.

This is a personal injury case, in which defendant, Mark A. McCarthy, appeals from a $4,000 verdict and judgment for plaintiff. The trial court denied the motions of defendant for a directed verdict, for judgment notwithstanding the verdict, and for a new trial.

Defendant introduced no evidence. Plaintiff testified that he and his family were invited to spend the week end of July 4, 1958, on the farm owned by defendant in Michigan. The purpose of the visit was 'to enjoy the week end,' and also to help defendant's son, Don McCarthy, to clear an area of scrub oak trees 'for his father [defendant].' When plaintiff and his family arrived at the farm, they were met by defendant and his son. After some conversation, defendant 'suggested that we go ahead and borrow the tractor from the neighbor and get to work cleaning up the scrub oaks along their property line before it got too hot.' After borrowing the tractor, Don drove it back to defendant's farm, with plaintiff riding in the rear. Defendant walked back to his farm, about one block distant.

Upon arriving at the farm, defendant showed plaintiff 'how to chop the roots of these scrub oaks,' and 'how to tie the chains around them.' Defendant's son Don operated the tractor, pulling the scrub oaks out of the ground. After several hours, while all three were working in the field, Don McCarthy said to plaintiff, 'You've been doing the hard work. Would you like to drive the tractor awhile, and I'll do the chaining?' Plaintiff agreed. As plaintiff, a salesman, had not theretofore driven a tractor, he asked Don to show him how to run it. Plaintiff testified, 'It did not look difficult. So, [Don] showed me how to shift. [The tractor] had a steering wheel, and I figured just like driving a car.'

About two hours later, Don attached the chain to a tree and told plaintiff to 'take it down to the end of the property,' and 'put it on the brush pile.' Plaintiff then drove down to the end, 'and started to turn in, and there was a hill a little bit high.' He shouted back to Don, 'In here?' and Don answered, 'Yes, take it in.' Plaintiff testified, 'Well, so, I accelerated the [tractor] and started going up, and it kind of chugged and started a little bit, and I gave it a little bit more throttle. * * * And [the tractor] went forward, and suddenly lurched up and come over this way (indicating). At that point, I was off balance, and I tried to jump, but I couldn't clear it. I fell on the ground, and the tractor fell on top of me.'

Since plaintiff's injuries occurred in Michigan, the substantive law of Michigan governs liability. (Restatement, Conflict of Laws, §§ 377, 378 (1934); Christiansen v. William Graver Tank Works, 223 Ill. 142, 79 N.E. 97 (1906): Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778 (1913); Butler v. Wittland, 18 Ill.App.2d 578, 153 N.E.2d 106 (1958).) No questions are raised as to the facts of the occurrence or plaintiff's injuries. Defendant's principal contention is that, under Michigan law, plaintiff was a 'social guest' or 'licensee' while present on defendant's land; and that as such, defendant would be liable to him only for injuries occasioned by willful and wanton misconduct. Both parties concede that the trial court held that, under Michigan law, plaintiff was an 'invitee,' and that defendant would be liable for injuries caused by want of ordinary care.

The Michigan Supreme Court has defined an 'invitee' as a person who, 'for the purposes connected with the business conducted on the premises, enters any place of business'; a possessor of land owes to an 'invitee' the duty 'to use the care that an ordinarily careful and prudent person would use under the same or similar circumstances to avoid causing injury.' Perl v. Cohodas, Peterson, Paoli, Nast Co., 295 Mich. 325, 294 N.W. 697, 700, 701 (1940); Goldsmith v. Cody, 351 Mich. 380, 88 N.W.2d 268 (1958); cf. 65 C.J.S. Negligence § 43(1), p. 508 (1950); Prosser, Torts, § 78 (2d Ed.) (1955).

Plaintiff argues that since he literally received an 'invitation' to defendant's farm, he was entitled to the 'invitee' standard of care, rather than the lesser standard accorded a 'licensee.' In support of this theory, he argues that various Michigan cases extend the legal definition of 'invitee' to his case: e. g., 'Every man who expressly or by implication invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of or ought to know of, and of which they are not aware.' Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 501 (1882).

The difficulty with this view is that it equates the legal meaning of invitation with the dictionary definition. Each of the cases plaintiff cites involves some aspect of commercial relations, and we are referred to no Michigan case treating a person in the position of plaintiff as an 'invitee.' On the other hand, we find no Michigan case in which the problem of the social guest has squarely arisen. The prevailing common law view in other jurisdictions, including Illinois, is that 'a social guest, however cordially he may have been invited and urged to come, is not in law an invitee, but is nothing more than a licensee, to whom the possessor [of land] owes no duty of inspection and affirmative care to make the premises safe for his visit.' (Prosser, Torts, § 77, p. 447 (2d Ed.) (1955).) The social guest 'is an invitee who is not an invitee; * * * the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited.' (2 Harper & James, The Law of Torts, § 27.11, p. 1477 (1956).) See, e. g., Southcote v. Stanley, 1 Hurl. & N. 247, 156 Eng.Rep. 1195 (1856); Krantz v. Nichols, 11 Ill.App.2d 37, 135 N.E.2d 816 (1956); Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002 (1934); Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982 (1921); cases collected in annotation, 25 A.L.R.2d 598 (1952). The only jurisdictions which have considered the question explicitly and have declined to follow the general rule appear to be Louisiana and Ohio: see Alexander v. General Acc. Fire & L. Assur. Corp., 98 So.2d 730 (La.App., 1957); Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951).

Since no Michigan appellate court has yet decided the question, we must assume that Michigan would follow the common law view, as understood by Illinois courts. For we cannot, in advance of its announcement by the courts of Michigan, 'assume that the common law in that state will be declared to be different from the common law as construed in [Illinois].' (Royal League v. Kavanagh, 233 Ill. 175, 184, 84 N.E. 178, 181 (1908).) Accordingly, we conclude that Michigan would regard plaintiff as a social guest, and as such, to be accorded the standard of care appropriate to a 'licensee' rather than that appropriate to an 'invitee.' Krantz v. Nichols, 11 Ill.App.2d 37, 135 N.E.2d 816 (1956); Biggs v. Bear, 320 Ill.App. 597, 51 N.E.2d 799 (1943).

Defendant assumes that Michigan law limits recovery by a 'licensee' to injuries occasioned by willful and wanton misconduct. This is so only as to the maintenance of premises in a defective or dangerous condition. See, e. g., Hargreaves v. Deacon, 25 Mich. 1; Douglas v. Bergland, 216 Mich. 380, 185 N.W. 819, 20 A.L.R. 197 (1921). Another rule applies when the injuries of the 'licensee' result from the active negligence of the host. '* * * [A]fter the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence.' Polston v. S. S. Kresge Co., 324 Mich. 575, 37 N.W.2d 638, 641 (1949); Wieghmink v. Harrington, 274 Mich. 409, 264 N.W. 845 (1936); Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 123 N.W. 1122 (1909).

As these terms are used in cases involving the liability of a possessor of premises to one injured thereon, 'active or affirmative negligence' may be defined as negligence occurring in connection with activities conducted on the premises, and 'passive negligence' as negligence which causes danger by reason of the physical condition of the premises. It is only the latter which must be willful and wanton to result in liability. Garstka v. Republic Steel Corp., 294 Mich. 387, 293 N.W. 691 (1940); Anderson v. Welty, 334 S.W.2d 132 (Mo.App., 1960); cf., 2 Restatement, Torts, § 341 (1934); 2 Harper & James, The Law of Torts, § 27.10 (1956); Prosser, Torts, § 77 (2d Ed.) (1955).

Having set forth what we believe to be the applicable law, we now consider whether defendant was entitled to a directed verdict or judgment n. o. v. 'These motions present only a question of law as to whether, when all of the evidence is considered, together with all reasonable inferences from it in its aspect most favorable to plaintiffs, there is a total failure to lack of evidence to prove any necessary element of the plaintiffs' case.' (Merlo v. Public Service Co., 381 Ill. 300, 311, 45 N.E.2d 665, 672 (1943).) We are of the opinion that plaintiff adduced sufficient evidence to go to the jury on the question of 'active or affirmative' negligence. From his testimony, the jury could conclude that plaintiff was completely uninformed as to the operation of a farm tractor prior to his visit to defendant's farm, and that his only information as to the tractor's characteristics was derived from defendant's son. Whether defendant and his son knew, or should have known, of...