Roadman v. C. E. Johnson Motor Sales

• Decision Date: 04 April 1941
• Docket Number: No. 32638.,32638.
• Citation: 210 Minn. 59,297 N.W. 166
• Parties: ROADMAN v. C. E. JOHNSON MOTOR SALES et al.
• Court: Minnesota Supreme Court

297 N.W. 166

210 Minn. 59

ROADMAN v. C. E. JOHNSON MOTOR SALES et al.

No. 32638.

Supreme Court of Minnesota.

April 4, 1941.

Appeal from District Court, Hennepin County; Lars O. Rue, Judge.

Action by Howard Roadman against C. E. Johnson Motor Sales and one Gadbois, to recover for injuries sustained when struck by an automobile. From an order granting a new trial as to C. E. Johnson Motor Sales, it appeals.

Order affirmed.

Johnson, Sands & Brumfield, of Minneapolis (Nesbitt, MacPhail & Miller, of Minneapolis, of counsel), for appellant.

A. E. Bryngelson, of Minneapolis, for respondent.

JULIUS J. OLSON, Justice.

Plaintiff's negligence action resulted in a verdict for the corporate defendant, but he prevailed against defendant Gadbois. (For the sake of brevity, we shall refer to defendants as "Johnson" and "Gadbois.") On plaintiff's motion, the court granted a new trial as to Johnson for errors of law specified in its order. It is from that order that Johnson appeals.

Plaintiff, an insurance salesman, went to the Johnson garage pursuant to an appointment theretofore made with one Tonn, an employe of Johnson. His purpose was to sell Tonn a policy of liability insurance. The appointed hour was between twelve noon and one o'clock, so arranged because Tonn's hours of labor did not include the noon recess. Plaintiff arrived shortly before twelve. Tonn was then engaged in making certain adjustments on Gadbois' truck, which had been brought there for attention. Another employe of Johnson had greased it before turning it over to Tonn in proximity to what is referred to as the "battery rack." The truck had been left in gear. After Tonn had worked on the mechanical part of the truck, he directed Gadbois to start the motor to see how it would act, or words to that effect. Gadbois, standing at the side of his truck, turned on the ignition, pressed the starter, and as a result the truck lurched forward and ran upon and against plaintiff, who was near the front of it, so as to catch one of his legs between the truck and the battery rack.

Liability is predicated, as against Gadbois, upon the theory that he negligently started the motor without first ascertaining that it was in neutral position. As to Johnson, the negligence charged is that Tonn's act of directing Gadbois to start the motor without first ascertaining that it was safe to do so combined with the negligent act of Gadbois in causing the injury to plaintiff. The evidence establishes that there was a rule in force at this garage that no car was to be left in gear, but, instead, the hand brake was to be used to keep the vehicle from moving. Gadbois testified that when he turned his truck over to be greased the motor was in a neutral position and that thereafter and until he started the motor pursuant to Tonn's direction he had done nothing to change that position.

There is also testimony for the company to the effect that Mr. Johnson, who observed plaintiff in the garage and did not want his employes to be bothered during their working hours, told plaintiff to depart. This plaintiff denies. The accident happened shortly after 12 o'clock.

The instructions deemed material on this appeal may thus be summarized:

"A licensee is one who goes upon the premises of another with some permissive right." As such, "the owner must refrain from actively causing him harm."

"But," continued the court, "a mere licensee has not even the rights of a licensee. The owner owes him no duty to watch out for him, no duty to protect him against any of the hazards or dangers in his place of business. He is not required to exercise any vigilance with respect to the safety of the mere licensee, but he is not permitted, under the law, to wilfully and wantonly inflict injury or cause harm to him. If he does it wilfully or intentionally, that is by an affirmative act on his own part, then of course he may be liable for the consequences. Now, under the evidence in this case Roadman was a mere licensee. He went there for the purpose of his own business and not for any benefit to the Johnson Sales Company, and that makes him a mere licensee, and not a licensee."

Accordingly, "to hold Johnson Sales Company liable in damages on the evidence in this case, you must find that Tonn wilfully, intentionally, or with reckless disregard of the safety of Roadman directed Gadbois to start the motor that was likely to and would naturally cause harm to Roadman. Mere negligence or carelessness on the part of Tonn is not sufficient. It must be more than that. It must be an intentional, affirmative act that endangers Roadman and would result in injury." (Italics supplied.)

The jury, after considering the matter for some time, came back for further instructions.

One of the jurors said: "Your Honor, there seems to be some question of doubt as to the statement you made this morning in regard to this plaintiff's rights on the premises. I wonder if we could hear that quotation * * *?

"The Court: Very well. Mr. Reporter, will you find it and read it?" (The reporter did so.)

"The Court: Does that answer your question?

"Juror: I think we would like to know what you mean by an intentional, affirmative act.

"The Court: Well, that is about as plain English as I can use. As I explained in there, not negligence, but actively, wilfully doing something with the intent to cause harm and injury—I can't see how I can explain that any more. That is the law.

"Juror: Well, naturally we assume that he wouldn't do a thing of that sort intentionally. It has got to be an accident of some kind.

"The Court: I am afraid I can't comment on that." (Italics supplied.)

Thus, the determinative issue presented to and decided by the jury was not whether Johnson's servants had acted negligently, but rather and only whether they had been "actively, wilfully doing something with the intent to cause harm and injury." The verdict establishes, even if the record should not require, that intentional or wilful conduct is out of the case. So the only question is whether the court was justified in granting a new trial for "errors of law occurring at said trial" in the circumstances related.

1. Legal duty in any particular situation "prescribes the measure of care to be exercised by the party charged with negligence." Such duty determined, the only thing remaining is "whether that duty was breached" by defendant, thereby causing plaintiff harm. Ruth v. Hutchinson Gas Co., Minn., 296 N.W. 136, 140.

2. Negligence as foundation for legal liability has for its basis that, "Every person in the conduct of his affairs is under a legal duty to act with care and forethought; and if injury results to another from his failure so to do, he may be held accountable in an action at law." 20 R.C.L. p. 7, § 2, and cases under note 6. In other words, as stated in Heaven v. Pender [1883] L.R. 11 Q.B.D. 503, 509: "Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."

That principle has met with general approval here and elsewhere. Thus, in Depue v. Flatau, 100 Minn. 299, 303, 304, 111 N. W. 1, 8 L.R.A.,N.S., 485, this court adopted the holding quoted as a basis for imposing liability. Our cases are cited in 4 Dunnell, Minn.Dig., 2 Ed. & Supps., § 6974.

3. The general rule is that a mere licensee, like the trespasser, must take the premises as he finds them. Mazey v. Loveland, 133 Minn. 210, 158 N.W. 44, L.R.A. 1916F, 279; Sage's Adm'r v. Creech Coal Co., 194 Ky. 415, 418, 419, 240 S.W. 42. But this does not absolve a negligent defendant from liability where his active or affirmative acts of negligence are the cause of plaintiff's hurt. That distinction is generally recognized in the cases. Ingalls v. Adams Express Co., 44 Minn. 128, 129, 46 N.W. 325; Klugherz v. Chicago, M. & St. P. R. Co., 90 Minn. 17, 22, 23, 95 N.W. 586, 101 Am.St.Rep. 384; Widing v. Pennsylvania Mut. L. Ins. Co., 95 Minn. 279, 282, 283, 104 N.W. 239, 111...