Staley v. Theo. Hamm Brewing Co.
| Citation | 142 Minn. 399 |
| Decision Date | 16 May 1919 |
| Docket Number | No. 21,171.,21,171. |
| Parties | GEORGE STALEY v. THEO. HAMM BREWING COMPANY AND OTHERS. THEO. HAMM BREWING COMPANY, APPELLANT.<SMALL><SUP>1</SUP></SMALL> |
| Court | Supreme Court of Minnesota (US) |
defendant brewing company alleged that plaintiff's injuries were due to his own want of care. The case was tried before Childress, J., who at the close of the testimony denied the motion of the brewing company to dismiss the action as to that company and the motion of the same defendant for a directed verdict as to it, and a jury which returned a verdict for $3,000 against the brewing company and in favor of the other defendants. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant brewing company appealed. Affirmed.
H. J. Charles and Norbert Willwerscheid, for appellant.
J. A. & A. W. Sawyer and F. A. Alexander, for respondent.
Action for personal injuries against three defendants, Virtue, the owner of a building where plaintiff was injured, and the Owatonna Liquor Company and the Theo. Hamm Brewing Company, who were tenants of portions of the building. The verdict was against the brewing company only. It appeals from an order denying its motion for judgment notwithstanding the verdict or for a new trial.
The building had two floors and a basement. The liquor company occupied part of the second floor and the appellant part of the first floor and basement. The remainder of the building was under the control of Virtue. There was a covered platform at the rear and an inclosed shaft or well for a freight elevator extending from it to the basement below and the second floor above. The elevator was not leased to appellant, but it had the right to use it in common with the other occupants of the building, and did so use it. The opening from the platform into the elevator well was protected by a gate, which was intended to close automatically when the elevator was not at the platform. On December 27, 1916, and for a considerable time theretofore, the gate was defective and would often stick in the grooves in which it slid up and down. If it stuck after the elevator had been run to the second floor, there was no barrier to prevent persons from stepping from the platform into the elevator well. The condition of the gate was known to all the defendants and also to respondent, a drayman who regularly delivered merchandise to the liquor company.
Between 5:30 and 6 p. m. on the date mentioned, respondent drove up to the platform to deliver some cases of liquor to the liquor company. He picked up a case, and, carrying it in front of him, went along the platform to the elevator and discovered that the gate was up. He testified that this led him to believe that the elevator was at the platform. He put out his foot to feel for it, lost his balance and fell into the well, broke his leg and suffered other bodily injuries. In fact the elevator was at the second floor and the gate had failed to drop into place because of its defective condition.
1. The complaint alleged that the elevator was in the possession and under the control of all of the defendants. The court charged that there could be no recovery against any defendant, unless he had such possession and control when respondent was injured. On this appeal it is urged that there was no evidence that appellant had possession and control of the elevator at or immediately prior to the time of the accident. Several witnesses testified that an employee of the liquor company named Ryan used the elevator shortly before respondent was injured, and that it was not used again until after the accident. On the other hand, one Suddendorf, a former employee of appellant, testified he was working at the platform when respondent drove up with the liquor company's goods; that about 20 minutes before one Duclos, also an employee of appellant, used the elevator to go upstairs; that, when witness saw respondent fall, he called to Duclos to come down, and that he did come down with the elevator and assisted in carrying respondent to a place of safety. It was for the jury to decide whether Suddendorf's testimony was true or false. Their verdict indicates that they believed him. It has the approval of the trial court. We hold that the evidence would sustain a finding that Duclos was the man who last used the elevator before respondent was hurt. If he did, then, even though Virtue was responsible for the defective condition of the gate, the proximate cause of respondent's injury was the failure of Duclos to see that it closed when he ran the elevator to the second floor. His negligence was attributable to appellant, if he was then using the elevator in the course of his employment or in the line of his duty, with a view to the furtherance of its business, and not for a purpose personal to himself. Penas v. Chicago, M & St. P. Ry. Co. 112 Minn. 203, 127 N. W. 926, 30 L.R.A.(N.S.) 627, 140 Am. St. 470; McLaughlin v. Cloquet Tie & Post Co. 119 Minn. 454, 138 N. W. 434, 49 L.R.A.(N.S.) 544; Sina v. Carlson, 120 Minn. 283, 139 N. W. 601.
2. But it is urged that, if Duclos did use the elevator in the manner detailed by Suddendorf, he was using it for a purpose personal to himself. He testified that about 4 p. m. on the day of the accident he went to the office of the liquor company on the second floor to play cards with Ryan and one Spence, another employee of appellant; that he sat at cards with them from the time he went upstairs until called by Suddendorf after respondent was injured. Ryan and Spence corroborated him. He denied having used the elevator at all on that day, but on cross-examination admitted that he had used it at other times. He testified that when he had used it, it was on his employer's business, except on a few occasions, and that if he used it at all on the day of the accident, it was in connection with the business of appellant. As already pointed out, Suddendorf testified that Duclos did use the elevator a few minutes before respondent was injured, and the jury must have found that he did. Other witnesses testified that appellant's employees frequently went to the liquor company's office to transact business for their employer and sometimes brought up keg beer to be delivered with goods of the liquor company to customers of both companies, and that the elevator was used on such occasions. The evidence as a whole would justify a jury in finding that Duclos did use the elevator in his employer's business immediately prior to the accident.
3. The court charged that respondent could not recover if he "went upon these premises without invitation, express or implied, of the party here guilty of negligence," that if he went there without such invitation he "was a bare licensee * * * and cannot recover" from any defendant who had not invited him to come, "because that party owed him no duty to look out for his safety." No exception was taken by any of the parties to the giving of this instruction. There was no evidence that respondent went on the premises at the invitation of appellant. He was there solely because of an implied invitation of the liquor company. Was it, therefore, the duty of the trial court to set the verdict aside and grant a new trial?
It was not essential to respondent's right of recovery that he was invited upon the premises by appellant. The complaint alleges an invitation by all the defendants, but it is broad enough to sustain a recovery without proof of such invitation. Responsibility for an injury to one...
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