Manley v. Haus.
| Decision Date | 26 June 1943 |
| Docket Number | No. 1148.,1148. |
| Citation | 32 A.2d 668 |
| Parties | MANLEY v. HAUS. |
| Court | Vermont Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Windham County Court; Orrin B. Hughes, Judge.
Action for personal injuries by Margaret H. Manley against Bernard H. Haus. Verdict and judgment for plaintiff, and defendant brings exceptions.
Affirmed.
Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
Edward C. Barry, of Wilmington, for plaintiff.
Osmer C. Fitts, of Brattleboro, and A. Pearley Feen, of Burlington, for defendant.
This is a tort action in which the plaintiff seeks to recover for personal injuries received while she was on the defendant's premises. The plaintiff had a verdict and judgment below and the case is here on the defendant's exceptions.
The defendant contends that his motion for a directed verdict and motion for judgment notwithstanding the verdict should have been granted, because:
1. There was no evidence from which the jury could reasonably find that the injuries received by the plaintiff resulted from any negligence chargeable against him.
2. The evidence does not show that the plaintiff was free from contributory negligence.
There is little, if any, dispute as to the material facts. From the evidence viewed in the light most favorable for the plaintiff the jury could reasonably find as follows.
On October 27, 1938, and for some time before that date the plaintiff's husband was engaged in the radio repair business at Brattleboro, Vermont. At all times here material the defendant was there engaged in an automobile sales and service business. The main entrance to the garage where this business was conducted was on the southerly side of Flat Street. There was also a side entrance on the westerly side of the garage building opening into a parking lot eighty feet square. This lot was used by the defendant in connection with his business. Entrance to this parking lot was also on the southerly side of Flat Street and one having business at the garage could enter and park his car on this lot. About six inches southerly from the south side of the westerly garage door there was a flight of stairs leading to the furnace room in the basement. This stair well was 16 feet, 9 inches long from north to south and 3 feet, 10 inches wide and about 6 feet, 10 inches deep. The easterly side of this well was about 1 foot from the westerly garage wall. There was a cement “lip” two or three inches high around this well to keep water from flowing into it. Otherwise the opening was unprotected excepting a hinged cover over the southerly one-third of it.
On the afternoon of October 27, 1938, the plaintiff's husband received word from the defendant requesting him to call at the garage and pick up a radio which was in one of defendant's cars and which the defendant wished to have repaired. Manley told the defendant that he could not come for the radio until late in the afternoon and asked him to have one of his men take it out of the car so that he could get it quickly when he should call. Shortly before the garage closing time which was 6 o'clock p. m., Manley, accompanied by his wife, drove to the defendant's garage, entered the parking lot with his car lights on and parked facing east and with the front bumper about one foot westerly from the stair well. He turned off the car lights, got out and entered the garage through the westerly door. The plaintiff remained seated on the right side of the front seat in the car. It was then raining some and was “slightly misty and dark”. Manley found that the radio had not been removed from the car and at once went back out to his car, told the plaintiff that he would have to remove the radio and asked her to come into the garage and hold a light so that he might see to do the work. He then went to the back of his car to get his tools, heard the right-hand door shut, picked up his tools and returned to the car in the garage expecting to find the plaintiff there. Not finding her he came back out, threw the light from his lantern around but did not find her. He returned to the garage, asked a workman if he had seen Mrs. Manley and learned that he had not. He continued to look for her and finally flashed his light in a way that showed him the well where the basement stairs were located. He found the plaintiff at the bottom where she had fallen when she attempted to walk from their car into the garage in response to his request to come in and hold the light for him. It was dark when the plaintiff got out of the Manley car on the right side and walked toward the front. She looked when she started, tried to go around the front end of the car to enter the garage and fell into the well. When found she was lying still and did not speak until a few minutes later. After Manley had put his wife in their car he went into the garage and alone removed the radio in about ten minutes. He knew that they had drop lights in the garage and felt free to ask for one to use but considered an electric lantern easier to handle. He did not attempt to find anyone when he first went in from whom he might ask permission to use a drop light. He had done more or less radio repair work for the defendant for about a year prior to the time in question and had called at the garage on various occasions in connection with that work. He did not see the stair well when he parked his car and did not know about it until he found it by use of his electric lantern when he was searching for his wife. The plaintiff assisted her husband in his radio repair business and at various times called for and delivered radios for him, but had not before been to the defendant's garage on any matter connected with her husband's business. On the occasion in question she went along with her husband to be of assistance should her help be required. However, both she and her husband expected that the radio would be removed from the car when they reached the garage. She did not know that the stair well was there until she fell into it.
The defendant contends that on the occasion in question the plaintiff was on his premises as a mere volunteer or at most as a gratuitous licensee. The plaintiff insists that she was there as a business visitor.
In Wool v. Larner, 112 Vt. 431, 26 A.2d 89, 92, we stated that: “It is evident that invitation in the technical sense, from which the duty of active care arises, differs from invitation in the ordinary sense, implying the relation of host and guest, or a mere license.” To avoid confusion in the use of the terms “invitee” and “invitee in the technical sense”, we have adopted the following definitions from the Restatement of Torts.
Wool v. Larner, 112 Vt. at page 435, 26 A.2d 89.
In this opinion the term “business visitor” is used in the sense that the term “invitee” is used in many of the cases cited.
The invitation required to qualify one as a business visitor on the...
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...§ 21.1. In any event, both defenses were properly submitted to the jury. Berry v. Whitney, 125 Vt. 383, 387, 217 A.2d 41; Manley v. Haus, 113 Vt. 217, 223, 32 A.2d 668. 127 Vt. at 591-592, 255 A.2d at The Vermont cases do not furnish a clearly controlling precedent. The implication of the l......
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