Jewison v. Dieudonne
| Citation | 127 Minn. 163,149 N.W. 20 |
| Decision Date | 16 October 1914 |
| Docket Number | No. 18703 [222].,18703 [222]. |
| Parties | JEWISON v. DIEUDONNE et al. |
| Court | Supreme Court of Minnesota (US) |
OPINION TEXT STARTS HERE
Appeal from District Court, Waseca County; Arthur B. Childress, Judge.
Action by John C. Jewison against Emil Dieudonne and others. Verdict for plaintiff. From denial of applications for judgment notwithstanding the verdict or for a new trial, defendants appeal. Affirmed.
Where plaintiff, a farmer, was injured by an automobile while he was passing through the rear portion of a village automobile repair and farm implement shop in order to transact business in the front, the fact that he reached the place where he was injured by passing through a rubbish-strewn alley and the rear entrance of the building did not, upon the facts of the case, constitute him a bare licensee, so as to preclude him from invoking the rights of one upon premises by invitation.
Whether an employé of the repair shop, who was handling the automobile at the time of the accident, was guilty of negligence, held for the jury.
The question of negligence on plaintiff's part was also for the jury.
The fact that two of defendants were sued as copartners did not make a recovery necessarily depend upon the establishment of such relation.
Where there is a holding out of a partnership relation concerning the control of a place where business is transacted and an invitation extended, under such circumstances of publicity as to warrant the inference that a person subsequently injured therein through the negligence of an employé of those in charge must have had the right to believe that those extending the invitation were in control of the premises, a recovery may be had without regard to the actual existence of the partnership relation; liability in such case, however, depending, not wholly upon the doctrine of estoppel, nor that of respondeat superior, but upon the assumption of a definite status with reference to the property and a specific relation to the person injured, to which the law attaches direct and positive duties. J. P. Kyle, of St. Paul, and P. McGovern, of Waseca, for appellants.
L. D. Rogers, of Janesville, and Moonan & Moonan, of Waseca, for respondent.
Action against defendants Dieudonne, as partners, and defendant Nyquist, as their alleged employé, to recover damages for personal injuries claimed to have been caused by the latter's negligence while plaintiff was in a shop conducted under the firm name of E. Dieudonne & Son. A verdict was returned against all defendants, and each of them appealed from an order denying their applications for judgment notwithstanding or for a new trial.
The accident occurred in the village of Janesville, in the afternoon of September 5, 1912. It is undisputed that in 1885 defendant Emil Dieudonne, to whom we will hereafter refer by his Christian name, opened a farm implement business on his own account and under his name, in the village mentioned, and so continued to operate it until 1900, in which year his son Eugene becaue of age and was associated with him therein; the firm thereafter being so conducted for the period of five years, under the name of E. Dieudonne & Son. Defendants claim that in 1905 this partnership was dissolved by Emil's withdrawal, the son continuing the business alone, and that since then the father has had no interest in the same, except as a creditor, and has taken no part in its management. It was conducted at all times in a building owned by Emil, but rented to Eugene after the dissolution, which fronted on the graded and paved main street of the village, the main entrance opening upon the sidewalk. The building was 42 feet wide and 90 feet deep, and situated in the center of the block, on a lot 140 feet deep, extending back to a 20-foot unpaved, ungraded, littered alley bisecting the block. Up to 1910 it had been used entirely for the sale and exhibition of farm machinery, having an office in front and a board floor, on a level with the sidewalk, running back its entire length. After the alleged dissolution and prior to 1910 the business of repairing automobiles was conducted in the rear part, and in the latter year all the board floor except about 37 feet in front was taken out, the level lowered 2 1/2 feet, and a cement floor substituted. The rise between the two floors was not boarded up, and there were no permanent steps connecting them; a movable step, consisting of boxes, being used for this purpose, and being shoved under the board floor when space was needed. The area of the cement floor was divided into two compartments, one used as a garage and the other as a repair shop, with an entrance through a door opening to the rear. Nothing was kept for sale in these compartments, nor was either fitted up for the reception of customers, and the workmen there employed were engaged solely in repairing automobiles. Adjoining the office articles were kept for exhibition, including repairs for machinery. On the day of the accident plaintiff, a farmer residing near Janesville, entered the building through the rear door for the purpose of exchanging some mower repairs he had obtained on the previous day. Defendant Nyquist, an employé in the repair shop, was then engaged in the garage in repairing a defective automobile belonging to defendant Eugene, and as plaintiff was about to enter he backed the machine out through the door, noticing plaintiff and another man enter just after he came out. Stopping the automobile outside the entrance, but leaving the motor running very fast and without applying the brakes, on the supposition that the machine was not in gear, but not in fact knowing where the defect was, he proceeded with his work. He then stepped into the car, and as he did so it started to move forward, and, not being under control, ran into the garage. Plaintiff, who at this time was passing through the rear of the building in order to reach the office, was struck by the machine when near the temporary step and injured. He was familiar with the premises and their uses, and he and others had frequently entered the building through the rear for the purpose of transacting business in the front.
[1] 1. Defendants insist that plaintiff was a mere licensee, to whom no duty was owing, except to refrain from willfully injuring him while on the premises, and hence in no event is entitled to recover against any of them. We have set out the location and details with reference to the construction and use of the building, because these matters were elaborately covered by the testimony given on the trial, and are also relied upon to establish the point mentioned. But it clearly appears that the building was such as is ordinarily used in the villages of the state for exhibition of farm implements and automobile repairs, and taking into consideration the business transacted in it, its location, and the use made by patrons of the rear door, we cannot say that a customer like plaintiff, when entering from the rear, would have no better standing than a bare licensee. The fact that the alley was unimproved and strewn with rubbish, such as is usually found in such places, is not of importance; for farmers, who of necessity are often confronted with such conditions, would naturally be frequent customers of the business conducted in the front of the building, and the persons in charge must have known that the condition of the alley would not, and did not, prevent them from using the rear entrance when more convenient than the front. Plaintiff was entitled to the rights of one who comes upon the premises of another by invitation. We find no reversible error in the instructions in this regard.
[3] 2. The further claims that, as a matter of law, defendant Nyquist's negligence was not established, and that plaintiff should be held to have been negligent, are not sustained. We deem the recital of the facts stated concerning the manner in which the automobile was handled a sufficient refutation of the first, and the question of plaintiff's negligence was so plainly for the jury that the second does not merit discussion.
[4] 3. Defendants also contend that, because the Dieudonnes are sued as partners, unless such relationship was established, no recovery can be sustained against any of defendants. Tort-feasors, however, are jointly and severally liable, and G. S. 1913, § 7897, provides that:
‘When two or more are sued as joint defendants, and the plaintiff fails to prove a joint cause of action against all, judgment may be given against those as to whom the cause of action is proved.’
See Miles v. Wann, 27 Minn. 56, 6 N. W. 417;Huot v. Wise, 27 Minn. 68, 6 N. W. 425;Fryklund v. Great Northern Ry. Co., 101 Minn. 37, 111 N. W. 727.
[5] 4. The complaint, in addition to alleging that defendant Dieudonne were copartners, charged that they...
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