Rich v. Tite-Knot Pine Mill

• Citation: 245 Or. 185,421 P.2d 370
• Decision Date: 14 December 1966
• Docket Number: TITE-KNOT
• Parties: Edwin P. RICH, Respondent, v.PINE MILL, Appellant.
• Court: Supreme Court of Oregon

Page 370

421 P.2d 370

245 Or. 185

Edwin P. RICH, Respondent, v. TITE-KNOT PINE MILL, Appellant.

Supreme Court of Oregon, in Banc.

Argued and Submitted at Pendleton Oct. 31, 1966.

Decided Dec. 14, 1966.

William M. Holmes, Bend, argued the cause for appellant. With him on the brief were DeArmond, Goodrich, Gray, Fancher & Holmes, Bend.

Owen M. Panner, Bend, argued the cause for respondent. With him on the brief were Roy Kilpatrick, Canyon City, and McKay, Panner, Johnson & Marceau, Bend.

Before McALLISTER, C.J., and PERRY, SLOAN, ^* O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Plaintiff brought an action against defendant for damages because of personal injuries received while in defendant's sawmill. Plaintiff's complaint contained two alternative theories of recovery. The first was based upon common law negligence and the second was under the Employers' Liability Act. Upon the completion of plaintiff's case in chief the court granted an involuntary non-suit as to plaintiff's second theory. The case was submitted to the jury on the common law theory and the jury returned a verdict for plaintiff. Defendant appealed.

Throughout the entire proceedings in this case plaintiff's alternative theories of recovery were treated by both parties as separate causes of action. Non-suits were moved for against them separately and demurrers were filed against them in the same manner. Actually, there was only one cause of action and a non-suit or demurrer will not lie to one theory of recovery or, in effect, to a portion of a cause of action. While we will refer to the proceedings taken by defendant against plaintiff's complaints by the nomenclature the parties used, we are treating the motions for non-suits against plaintiff's separate theories of recovery as motions to withdraw them from the consideration of the jury, and the demurrers as motions to separately strike.

Plaintiff called at defendant's mill seeking work. He was told by the mill superintendent that defendant did not need anyone on the day shift but to check with the night shift foreman. Plaintiff testified he thereafter pulled a few boards from the green chain and talked to the men working there and departed. The next morning plaintiff returned to the mill and again sought employment from the superintendent. He was again told there was no work on the day shift but to check with the night foreman. Both of these conversations were in the mill where plaintiff had sought out the superintendent, and not in the mill office. Plaintiff testified that prior to the second conversation and before plaintiff saw the superintendent, he assisted one of the mill owners, who was the superintendent's father, straighten a pile-up of lumber on the roll case. No one objected. Later, after his conversation with the superintendent, he claimed he again pulled a few boards from the green chain and talked to the men working there.

Plaintiff returned that evening and went into the mill. While he was having a conversation with the edgerman, and before he talked to the night shift foreman, lumber again became disarranged on the roll case. Without being requested to do so plaintiff started to straighten it. While so doing, the metal tab on the zipper of his sweatshirt caught in a slot known as the keyway in a revolving metal shaft in the roll case. As a result, plaintiff's clothing was wound up on the revolving shaft and was stripped from him, and he was thrown to the floor where he received serious and permanent injury to his leg and foot.

Defendant assigns as error the court's failure to give its requested instruction relative to the definition of a trespasser and the duty owed by a property owner to a trespasser. This and subsequent assignments of error bring into question the nature of plaintiff's status on the premises at the time of the accident, defendant's duty to plaintiff, and the kind of negligence attributed to defendant.

The two allegations of negligence submitted by the court to the jury were defendant's failure to guard the shaft and to warn plaintiff of the danger. There was no claim of any active negligence on defendant's part. The negligence charged related solely to the condition of the premises and failure to warn of its condition.

A trespasser is one who enters or remains on premises in the possession of another without a privilege to do so, created by the possessor's consent or otherwise. Hansen v. Cohen et al., 203 Or. 157, 165, 276 P.2d 391, 278 P.2d 898 (1954); 2 Restatement 891, Torts, § 329. Except for situations not relevant here, the possessor is not liable for injuries to trespassers caused by his failure to exercise reasonable care to put his premises in a safe condition. State v. Standard, 232 Or. 333, 338, 375 P.2d 551 (1962); Hansen v. Cohen et al., supra, 203 Or. at 161, 276 P.2d 391; Akerson v. D. C. Bates & Sons, Inc., 180 Or. 224, 228, 174 P.2d 953 (1946); Prosser, Torts (3d ed.) 365, § 58.

A licensee is one who comes upon the premises for his own purposes with the consent of the possessor. Hansen v. Cohen et al., supra, 203 Or. at 165, 276 P.2d 391. The possessor owes no duty to a licensee to put his premises in a safe condition but is under an obligation to disclose to the licensee any concealed, dangerous conditions of the premises of which he has knowledge. Burch v. Peterson et ux., 207 Or. 232, 235, 295 P.2d 868 (1956); McHenry v. Howells et ux., 201 Or. 697, 703, 272 P.2d 210 (1954); Prosser, supra, 385, 390, § 60.

An invitee is one who comes upon the premises upon business which concerns the occupier, with the occupier's invitation, expressed or implied. The occupier not only has the duty to warn of latent dangers, but also has an affirmative duty to protect an invitee against those dangers in the condition of the premises of which he knows or should have known by the exercise of reasonable care. Prosser, supra, 402, 403, § 61.

At the time of the accident plaintiff was on defendant's premises and within its mill with the implied consent of defendant. Therefore, the fact that he was within the mill did not make him a trespasser. Plaintiff without objection had twice previously contacted defendant's mill superintendent within the confines of the mill seeking employment, and in each instance was told he should come back later and contact the night foreman. The mill superintendent testified as follows:

'A Oh, I--I told him to check back. Didn't need anybody on the day shift, he might check with the night shift and--the night foreman.

'A He was--looked--still looking for a job. And we didn't, we--the day shift was pretty well filled and I told him to--might check back for the night shift.'

It does not necessarily follow, however, that plaintiff was not a trespasser while working at the roll case. A person who comes on another's premises may be a licensee or invitee for one purpose or part of the premises and not for another. Lavitch v. Smith, 224 Or. 498, 502, 356 P.2d 531 (1960); Grahn v. Northwest Sport, Inc., 210 Or. 249, 255, 310 P.2d 306 (1957); Hansen v. Cohen et al., supra, 203 Or. at 162, 276 P.2d 391. If an invitee, for the purpose which brought him, is encouraged to go to an unusual part of the premises to which the purpose would not usually take him, he remains an invitee. If he goes to such a place with consent but without such encouragement and solely on his own initiative, he is a licensee. If he goes to such a place without encouragement and without consent, he is a trespasser. Prosser, supra, 402, § 61.

'The mere fact that a person is invited into a structure and thereby becomes an invitee does not mean that he is an invitee in every part of the building and that he is at liberty to enter wherever he wishes. For example, a person who enters a bank and makes a deposit of money at the window of a teller would discover that his status as an invitee had changed to that of a trespasser if he attempted to make his way into the teller's cage.' Dutton v. Donald M. Drake Co., 237 Or. 419, 425, 391 P.2d 761, 764 (1964).

It also follows that one who originally enters the premises as a licensee may forfeit his license and become a trespasser if he exceeds its scope. Hansen v. Cohen, supra, 203 Or. at 164, 276 P.2d 391.

The implied consent given by the mill superintendent to come back in the mill to seek employment did not authorize plaintiff to come into the mill for the purpose of going to work at unguarded machinery. Plaintiff sought to show that there was such implied authorization by his testimony that he had previously done similar work with one of the mill owners, and by the testimony of his brother that the mill superintendent said he had been observing plaintiff and was about ready to hire him within a few minutes of the accident because he acted like he knew what he was doing.

The testimony produced by plaintiff concerning the work he performed on the premises and defendant's knowledge thereof is not admitted by defendant. There was testimony by the superintendent that he was told by some mill employees, at a time designated to be neither before nor after the accident, that the plaintiff had pulled a board or two on the green chain. The superintendent also said he was about to hire plaintiff because he looked like he knew what he was doing around sawmills. However, there was no testimony, other than that offered by plaintiff, that plaintiff had previously done work at the unguarded roll case or that defendant knew of such action.

The jurors were entitled to disbelieve plaintiff's testimony. If they chose to disbelieve it, the jurors could have found that plaintiff was a trespasser while engaged at the roll case despite the fact that plaintiff originally entered the mill as a licensee or an invitee. Therefore, defendant was entitled to have his theory that plaintiff was a trespasser presented to the jury. The court's failure to so present plaintiff's theory was reversible error.

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