Hansen v. Cohen

• Decision Date: 19 January 1955
• Citation: 278 P.2d 898,203 Or. 157
• Parties: Clarence HANSEN, Appellant, v. Ross COHEN and Nate Kesselman, copartners, Respondents.
• Court: Oregon Supreme Court

Page 898

278 P.2d 898

203 Or. 157

Clarence HANSEN, Appellant, v. Ross COHEN and Nate Kesselman, copartners, Respondents.

Supreme Court of Oregon, En Banc.

Jan. 19, 1955.

Stern, Reiter & Day and Jerome B. Shank, Portland, for the petition.

Collier, Bernard, Bernard & Edwards and Merwin Rankin, Portland, contra.

PER CURIAM.

Plaintiff's first proposition in his petition for rehearing is that we erred in holding that at the time of the alleged injury plaintiff was not a business invitee. It is asserted that the transition from the status of invitee to licensee or trespasser can only take place when an injured party removes himself from the physical area to which he was invited and that the cases supporting the text of Corpus Juris Secundum and American Jurisprudence and the cases we cited are all confined to the so-called area theory and that since plaintiff remained in the same area of the parking lot where he was invited to park his automobile he remained an invitee at all times.

There is a wealth of authority that a person may change his status even though he remains in the same area to which he was invited. The following cases instruct us that a person's status may shift to that of a trespasser although he remains in the same area where he was invited to go. Polston v. S. S. Kresge, 324 Mich. 575, 37 N.W.2d 638; Barry v. Southern Pac. Co. 64 Ariz. 116, 166 P.2d 825, 828; Connelly v. Virginian Ry. Co., 124 W.Va. 254, 20 S.E.2d 885; Slaughter v. State, 64 Ga.App. 423, 13 S.E.2d 391; Humphrey Co. v. Cohen, 16 Ohio Cir.Ct.R., N.S., 284, 286; Page v. Town of Newbury, 113 Vt. 336, 34 A.2d 218; Hurwith v. Shapiro, 334 Ill.App. 619, 79 N.E.2d 528.

Plaintiff argues that the defendant would be liable to plaintiff even though he were a licensee and even though the assault was not willful or wanton on the part of defendants if they were guilty of active negligence, citing Napier v. First Congregational Church of Portland, 157 Or. 110, 70 P.2d 43 and McHenry v. Howells, 201 Or. 697, 272 P.2d 210.

The fallacy of the above is that this action is predicated upon the retention by defendants of Waters in their employ after they knew of his vicious propensities. At the most, failure to discharge would be passive negligence.

We recognize that the words 'licensee' and 'trespasser' have in many cases, both in this and other jurisdictions, been employed in cases of this type as being synorymous. Much loose judicial expression has been employed in dealing with the subject. However, there is a very marked distinction between them. A licensee is one who goes onto land of another with an express or implied invitation for his own pleasure and purposes, while a trespasser is one who enters or remains upon lands in the possession of another unlawfully and without the consent or acquiescence of the owner. See 2 Restatement of the Law, Torts, § 329, et seq. Some courts permit recovery by a licensee or trespasser for active negligence while others do not permit a trespasser to recover for such negligence. Annotations, 49 A.L.R. 778 and 156 A.L.R. 1221.

In this state we have consistently held that as to a trespasser, such as we have in the instant case, there can be no liability against the owner of the premises unless the injury was brought about by wanton or willful negligence on his part.

In the early case of Rathbone v. Oregon Ry. Co., 40 Or. 225, 66 P. 909, 910, where Rathbone and his wife, at the invitation of one of defendant's section foremen, went with him on a Sunday on a handcar from Rooster Rock to Corbett, a distance of about one and one-half miles, to get some cherries. While returning from their jaunt and while passing around a curve in the railroad a collision occurred between the handcar and one of defe...