Hickman v. First Nat. Bank of Great Falls

• Decision Date: 27 September 1941
• Docket Number: 8138.
• Citation: 117 P.2d 275,112 Mont. 398
• Parties: HICKMAN v. FIRST NAT. BANK OF GREAT FALLS.
• Court: Montana Supreme Court

117 P.2d 275

112 Mont. 398

HICKMAN v. FIRST NAT. BANK OF GREAT FALLS.

No. 8138.

Supreme Court of Montana

September 27, 1941

Appeal from District Court, Eighth District, Cascade County; C. F Holt, Judge.

Action for injuries by Jessie Hickman against the First National Bank of Great Falls. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded with directions.

R. H Glover, S. B. Chase, Jr., and John D. Stephenson, all of Great Falls, for appellant.

E. J Stromnes and R. J. Nelson, both of Great Falls, for respondent.

ERICKSON Justice.

This appeal is from a judgment of the district court of Cascade county in favor of the plaintiff. The action was tried to a jury and, after its verdict, a motion was made for a new trial and that motion was denied. At the close of plaintiff's case defendant moved for a judgment of nonsuit and dismissal, and at the close of all the testimony defendant moved for a directed verdict. These motions were denied.

The testimony introduced on behalf of the plaintiff, which for the purpose of determining this appeal we take as true, was that on February 13, 1937, she had occasion to enter the building in question, owned by the defendant, for the purpose of investigating the status of a checking account in the banking offices of the defendant, which were located in the building. Her testimony is that she walked up the flight of stairs to the banking rooms and then, after completing her business there, she went to the elevators, of which there were two, and pressed a button marked "Down," and that as she was standing there waiting for an elevator, one of the elevators operated by the plaintiff's mother and which was then ascending stopped at that floor, and that her mother asked plaintiff to enter that particular elevator even though it was on its way up; that plaintiff would be let out on the ground floor when the elevator had completed its round trip to the eighth floor and return. Her testimony is that she entered the elevator and that at the time her mother asked her to enter it her mother told her that she had some matter to talk over with her. The testimony is that she rode to the eighth floor and then back to the first floor, and that she did not leave the elevator then but went again to the eighth floor, and upon the return of the elevator on that trip she rode in it to the basement; that the reason for going to the basement was in order to allow her mother to report to the building engineer that she thought something was wrong with the elevator. Her testimony is that the engineer did something to the handle mechanism of the elevator and then told plaintiff's mother to go ahead with the elevator; that thereupon the plaintiff and her mother re-entered the car and it was taken to the first floor; that on that trip, when they reached the first floor, she stated that she was going to get out of the elevator and go home, and that in reply her mother said, "Just a minute, I want to finish telling you what I started;" and that her mother went on to tell her to make another trip to the eighth floor with her, and that when she returned to the first floor her mother would then let her out. From her testimony it appears that no fewer than three trips from the first floor to the eighth floor and return were made by the plaintiff after she entered the elevator for the purpose of descending to the first floor, so that she might leave the building. Plaintiff's testimony does not show the subject of the matter under discussion between herself and her mother, but her testimony is clear to the effect that the conversation for which she stayed on the elevator was in no way connected with the business of the defendant or any of the tenants of the building, but that the matter under discussion was one of interest only to the plaintiff and the elevator operator, her mother.

The testimony of the plaintiff and of her mother is that for some reason the elevator, during the course of the morning in question, had not been working properly; that when the handle which operated the elevator was pushed down in order to start it in motion the elevator sometimes failed to respond and that it was necessary to push the handle down several times in order to start the car, and that on those occasions, when the car started, it started with a slight jerk. The testimony on behalf of plaintiff is that this matter was brought to the attention of the engineer of the building, and that he in turn called certain service men, who did not appear until after the alleged fall of the elevator. The testimony as to the actual accident is that on the last trip to the eighth floor, and while the plaintiff and her mother were alone in the car, when the handle was pushed down on the elevator for the purpose of starting the descent from the eighth floor, the elevator fell some feet, and that plaintiff was thrown to the floor and suffered the injuries which are the basis of this suit.

The defendant has assigned many errors and most of them concern the propriety of the instructions of the court which left to the jury the determination of whether or not the plaintiff at the time of the accident was an invitee on the premises of the defendant or merely a licensee. It is the defendant's view that plaintiff was not an invitee, as a matter of law, and with that view we agree.

The court instructed the jury, as a matter of law, that at the time she entered the building plaintiff was an invitee, and that this situation was also true at the time she entered the elevator in the first instance. The court, by appropriate instructions, left to the jury a determination of the question whether or not, between the time she entered the elevator and the time the accident occurred, her status had been changed from that of an invitee to that of a mere licensee. While under many circumstances that question should properly be left to the jury, yet under the facts here that matter should have been determined by the court as a matter of law.

There is no question but that, had plaintiff entered upon the premises of the defendant originally for the sole purpose of discussing personal affairs with defendant's employee, plaintiff's mother, she would have occupied only the status of a mere licensee. The rule is stated in 89 A.L.R. 757, 758: "Generally speaking persons who enter the premises of an employer merely for the purpose of seeing an employee on business unconnected with that of the employer, or for the purpose of paying a social visit to the employee, are at best mere licensees to whom the employer owes no duty save to refrain from acts of wilful and wanton negligence." Citing many cases.

In 45 C.J., page 791, it is said: "Persons have been regarded as licensees where they enter premises to visit employees of the owner; to transact with the employees of the owner business in which the owner has no interest."

In the Montana case of Jonosky v. Northern Pacific Ry. Co., 57 Mont. 63, 187 P. 1014, 1015, the court distinguished between an invitee and a mere licensee in this language: "An invitation is inferred where there is a common interest or mutual advantage, while a license is implied where the object is the mere pleasure, convenience, or benefit of the person enjoying the privilege."

It cannot be questioned that, had plaintiff not had occasion to transact business with the defendant or some other tenant of the building, and had she not originally entered upon the premises of the defendant for the purpose of this transaction, and had she been in the elevator only for the purpose originally of discussing matters with defendant's employee, she would never have acquired any status other than that of a licensee. The fact that she had upon her entry into the elevator the standing of an invitee does not mean that that standing would necessarily continue so long as she remained on the premises.

In the case of Chichas v. Foley Bros. Grocery Co., 73 Mont. 575, 236 P. 361, 362, it was said: "An invitee who enters upon portions of the premises upon which he has no right to enter becomes a licensee."

In 45 C.J. 794, the author says: "Where a person has entered on the premises of another by invitation, express or implied, he is bound by that invitation and becomes a bare licensee if he goes for purposes of his own, to some part of the premises other than that to which he was invited, uses the premises for other purposes or in ways other than those for which they are intended, or to which his invitation extends, or remains on the premises beyond a reasonable time after his invitation has expired." And in the same work, at page 830, it is said: "An invitee may lose his status as such by remaining on the premises beyond a reasonable time after his invitation has expired, but a slight delay for a proper purpose after the conclusion of his business does not deprive him of his status as an invitee."

Applying the rules above set out to the fact situation in the present case, it is clear that, as a matter of law, at the time of the accident alleged the plaintiff had ceased to be an invitee and her status was that of a mere licensee on the premises. On the first trip to the eighth floor and return to the first floor it could reasonably be said that the deviation from the necessary route of travel from the banking rooms and the time consumed would be so slight that plaintiff's status as an invitee could not be affected. But the accident in question occurred after the plaintiff had made one other round trip in the elevator and was engaged in making the trip for the third time. The purpose of these trips, as we have said, brings the situation squarely under the rule announced in the Jonosky case and in the various texts cited. Her business was not...