McCulloch v. Horton

• Decision Date: 06 April 1936
• Docket Number: 7510.
• Citation: 56 P.2d 1344,102 Mont. 135
• Parties: McCULLOCH v. HORTON.
• Court: Montana Supreme Court

56 P.2d 1344

102 Mont. 135

McCULLOCH v. HORTON.

No. 7510.

Supreme Court of Montana

April 6, 1936

Rehearing Denied May 2, 1936.

Appeal from District Court, Yellowstone County; Stewart McConochie Judge.

Action by D. H. McCulloch against Charles Horton. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded, with directions.

Guy C Derry and H. L. Myers, both of Billings, for appellant.

M. J Lamb, of Billings, for respondent.

ANDERSON Justice.

This action was brought to recover damages for personal injuries sustained by the plaintiff while on defendant's premises, through the alleged negligent and careless operation of a truck by the defendant. The cause was tried before the court sitting with a jury, and at the close of the testimony on behalf of the plaintiff a motion for nonsuit was made by the defendant, which was granted. Thereupon a judgment of dismissal was entered. Plaintiff has appealed from this judgment. By appropriate specifications of error a review of the ruling of the trial court on this motion is sought.

Plaintiff, a man 53 years of age, was employed in the fall of 1933 as assistant tareman for the Great Western Sugar Company at Worden, Montana. He commenced work on the 2d of October of that year, and on the evening of the 14th he went to the home of Charles Horton, who was his nephew and at whose home he had been taking a part of his meals while so employed, for which he paid agreed compensation. On the evening of this day his purpose in going there was to pay Mrs. Horton for his board for the week and to secure his laundry, which he had left there at noon. He remained there for the evening meal. After he had finished, he told the defendant, Horton, that he was going to his mother's to spend Saturday night and Sunday, who lived three and a half miles west and a little north of Worden. The defendant said, "Wait a minute and I will take you over." Plaintiff replied, "No, you don't need to take me over. For that matter, I could walk in a little while. There is plenty of people going over that way." Defendant said he had to go over anyway, that he had been hauling water from there, and he also had to take his brother, Paul Horton, home.

Thereupon plaintiff and defendant left the house and proceeded to the garage. The evening was dark and it was raining. The wind was blowing "pretty hard" from the west. Defendant's garage stood north and south, with the doors in the south end. It was a small garage, and within it defendant had a truck with a body on it which was used for the hauling of beets. The clearance between the sides of the doorway and the body of the truck was a matter of approximately eight inches. On each side of the body of the truck were wings which were on hinges and capable of falling outward. When the truck was loaded with beets, these wings were held upright by means of chains. During the day Paul Horton, the brother of defendant, had been engaged in hauling beets; and, while the plaintiff was in the house listening to the radio, he saw Paul Horton shovel the dirt out of the truck and drive it into the garage. The wings mentioned were 23 or 24 inches wide; they had been placed in an upright position but not chained. The truck was comparatively new and the hinges were stiff, so that when the wings were placed in an upright position they would remain in that position without fastening the chains, unless the truck was jarred. There was no method for fastening the garage doors back, and the defendant requested the plaintiff to take hold of the west door and hold it open. The plaintiff testified: "I took hold of the door and pulled it open and held it. I stood back as far as I could back up against the brace from the post at the corner of the garage. In the position I was standing, the car could not strike me if it backed out straight." Defendant went into the garage, started the car, turned on the lights, and proceeded to back out of the garage. One witness testified as to the backing of this car: "He backed out real fast." Another testified: "The truck came out unusually fast. Defendant did not back the car out straight." Plaintiff described the movement of the truck as follows: "It seemed like he cut the truck so that the back end of it swung to the southeast throwing the front part over. In backing out, the truck caught on the side of the door frame on the southwest--on the west side of the door--the door was hung on and split the studding. The front corner of the truck hit the door frame." The wing of the truck came down, struck the plaintiff, and inflicted personal injuries. The force of the blow threw the plaintiff some fifteen feet. Plaintiff's position, as testified by him, in holding the door was against a brace between two posts.

In Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49, 52, we said: "This court has often announced the rule that upon motion for nonsuit or directed verdict the evidence must be viewed from the standpoint most favorable to plaintiff, and every fact must be deemed proved which the evidence tends to prove. Nangle v. Northern Pacific R. Co., 96 Mont. 512, 32 P.2d 11. No case should ever be withdrawn from the jury when reasonable men might draw different conclusions from the evidence."

Plaintiff contends that the relation between the parties to the action at the time he sustained the injury was that of invitor and invitee; whereas the defendant contends that the relation at the time was that of licensor and licensee. If the contention of plaintiff is correct, then defendant owed the plaintiff the positive duty to exercise reasonable care for his safety. If, however, the contention of defendant is sustained, then his only duty owing to plaintiff was to refrain from wanton or willful acts which might occasion injury. Fusselman v. Yellowstone Valley L. & I. Co., 53 Mont. 254, 163 P. 473, Ann.Cas.1918B, 420; Jonosky v. Northern Pacific R. Co., 57 Mont. 63, 187 P. 1014; Chichas v. Foley Brothers Grocery Co., 73 Mont. 575, 236 P. 361.

As a general rule, the few decisions on the question hold that the relation between a host and a guest on private premises is not that of an invitor and invitee, but is that of licensor and licensee. Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002. The relation, however, existing between the parties to this action at the time of the occurrence of the injury was something more than that of host and guest. Plaintiff was at the time of the injury performing a service for the benefit of the defendant, and at his request. If the plaintiff did not at that particular time occupy the position of a gratuitous employee, he at least was an invitee. Our conclusion is supported by what this court said in the case of Liston v. Reynolds, 69 Mont. 480, 223 P. 507.

Counsel for the defendant has...