Hansen v. COHEN

278 P.2d 898, 276 P.2d 391, 203 Or. 157, 1954 Ore. LEXIS 265

• Court: Oregon Supreme Court
• Decided: November 10, 1954
• Status: Published

Opinions

LATOTJRETTE, C. J.

Action by Clarence Hansen against Cohen and Kesselman, co-partners, to recover damages resulting from an assault and battery by an employee of defendants who operated what is known as the Civic Parking Lot in Portland. Prom a judgment of nonsuit plaintiff appeals.

On the evening of April 19, 1952, plaintiff went to the lot to get his car which he had left there earlier in the day. He entered the office building on the premises and paid Millard Waters, defendants’ employee in charge, his parking fee. The undisputed facts are that upon the payment of the fee plaintiff invited Waters to throw dice with him for a wager of his fifty cents change. The invitation was accepted by Waters. At the conclusion of the dice rolling a dispute arose between them concerning the division of the winnings. Heated words ensued, whereupon the assault by Waters occurred.

The evidence discloses that Millard Waters, who had been in the employ of defendants since 1946, was a person of vicious propensities and was prone to the use of physical force and violence, all within the knowledge of defendants.

Plaintiff advances the legal proposition that at the time of the assault he was an invitee on the premises and because thereof defendants are liable for the assault on the legal ground that they were negligent in retaining Waters as their employee after they knew of his vicious propensities. It is conceded that the doctrine of respondeat superior is not involved because at the time of the melee the employee was not acting within the scope of his authority.

It is well settled that an employer may be liable to an invitee for an assault perpetrated by an employee of vicious propensities under certain circumstances, the rule being well stated in 35 Am Jur 1007, Master and Servant, § 574, as follows:

“Nevertheless, the courts generally recognize that there is a duty imposed upon an employer who is in the position of an inviter,—holding out an invitation to third persons to come upon his premises for the transaction of business or the like,—to avoid employment or retention of servants whom he knows or should know are unfit to meet invitees 'with whom they are likely to come in contact, by reason of objectionable character, temperament, or propensity rendering them liable to assault such persons, and that failure to do so may render the employer responsible even for a personal assault on an invitee by such servant.”

The same legal principle was recognized in Peck v. Gerber, 154 Or 126, 59 P2d 675, and Kelley v. Oregon Shipbuilding Corp., 183 Or 1, 189 P2d 105.

It is equally well settled that the owner of premises owes no duty to a bare licensee or a trespasser other than to avoid injuring him wilfully or wantonly. In Lange v. St. Johns Lumber Co., 115 Or 337, 343, 237 P 696, we read:

“ There is a difference between one present on premises by an invitation, express or implied, and one who is merely there by permission or toleration. The one is termed an invitee and the other mere licensee. As to the former, the owner of the premises is bound to use reasonable care to prevent the infliction of hurt upon the invitee: Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N. W. 99, 27 A.L.R. 579. As to the latter, the owner of the premises owes no greater duty than to avoid willful or wanton injury to the licensee.”

See Kesterson v. California-Oregon Power Co., 114 Or 22, 228 P 1092; Akerson v. D. C. Bates & Sons, Inc., 180 Or 224, 174 P2d 953; 65 CJS 438, Negligence, § 24; 38 Am Jur 771, Negligence, § 109.

It therefore becomes necessary, in order to arrive at a proper disposition of this case, to determine the status of plaintiff at the time of the assault. Although one’s status may originally be that of invitee the same may be lost under certain circumstances. This rule was stated in Napier v. First Congregational Church, 157 Or 110, 113, 70 P2d 43. In that case plaintiff called on the minister pursuant to invitation and while awaiting án interview with him he had occasion to go to the lavatory whereupon he opened a door and stepping forward fell down a stairway. We there said:

“This leads to the question as to the status of plaintiff. We think that plaintiff was a mere licensee. Assuming that for the purpose of interviewing Dr. Walker the plaintiff was an invitee, when he chose to seek a lavatory he embarked upon a quest for which he had not been invited.

“ ‘Where a person has entered upon the premises of another under invitation, express or implied, he is bound by that invitation, and becomes a bare licensee if he goes, for purposes of his own, to some part of the premises other than that to which he was invited, uses the premises for purposes or in ways other than those for which they were intended or to which his invitation extends, or remains on the premises beyond a reasonable time after his invitation has expired.’ 45 Corpus Juris, Subject: Negligence, p. 794, § 198.” (Emphasis supplied.)

We read in 38 Am Jur 762, Negligence, § 101:

“The duty owed by an owner or occupant of premises to an invitee for his safety is measured and limited by the nature of the invitation held out. His liability is only coextensive with the invitation; and to entitle a person to recover for injuries on the basis of a duty owed to him as an invitee, he must show that at the time of the injury he was using the premises for a purpose contemplated by the invitation. # * *” See 65 CJS 541, Negligence, §49.

In the following cases where the party claiming damages used the premises for purposes other than those for which they were intended or to which the invitation extended, he was termed a trespasser by the court: Ryan v. O’Hara, 241 Wis 389, 6 NW2d 209; Commonwealth v. Henderson’s Guardian, 245 Ky 328, 53 SW2d 694; Amblo’s Adm’x v. Vermont Associated Petroleum Corp., 101 Vt 448, 144 A 460. See 42A Words and Phrases, “Trespasser.”

Stern, Reiter & Day and Jerome B. Shank, of Portland, for the petition.

The gravamen of the charge in the complaint is the negligence of defendants in retaining Waters, well knowing of his vicious propensities. There can be no negligence if there is no duty or obligation due from one person to another. This rule is well stated in Haynes v. Ore.-Wash. R. & N. Co., 77 Or 236, 244, 150 P 286, as follows:

“Negligence is an infraction of a legal obligation due from one person to another, and where there is no duty there can be no negligence. * * * The plaintiff herein was a trespasser upon premises the care of which devolved upon the defendant, and it owed to him no duty except that of not inflicting any wanton or reckless injury.”

We conclude as a matter of law that plaintiff was unlawfully using the defendants’ premises for purposes or in ways other than those for which they were intended or to which'his invitation extended. He was in no better position than had he come in directly from the street to gamble. By no stretch of the imagination could it be assumed that the defendants intended to permit the premises to be used for gambling purposes. They were engaged in the business of operating ¿ parking lot and not that of gambling. Being on an unlawful quest of his own at the time of the fracas, defendants owed him no duty other than to avoid injuring him willfully or wantonly. There is no contention that they so acted.