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is no sound distinction between the case of a servant and the case of his employer. In the case of WatersPierce Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170, the court said: "Appellee was the servant of a customer of appellant, was lawfully on its premises for the purpose of procuring the product it sold, and it owed him the legal duty to exercise at least ordinary care to protect him from injury while there."

The same principle is recognized in New York Lubricating Oil Co. v. Pusey, 129 C. C. A. 88, 211 Fed. 622; Ridenour v. International Harvester Co. Mo. App. - 205 S. W. 205 S. W. 881; Kinsey v. Locomobile Co. 235 Pa. 95, 83 Atl. 682; Pauckner v. Wakem, 231 Ill. 276, 14 L.R.A. (N.S.) 1119, 83 N. E. 202. In Howlett v. Dorchester Trust Co. 256 Mass. 544, 152 N. E. 895, a child accompanying its mother to a bank was held to be an invitee; in Davis v. Ferris, 29 App. Div. 623, 53 N. Y. Supp. 571, a wife accompanying her husband, who went to a lumber yard to pick out some lumber for an ironing board for her, was held to be an invitee; and in Warner v. Lucey, supra, the court held that a person, going with the owner of an automobile into a public garage to get the owner's machine, is in the position of a patron, lawfully upon the premises upon the implied invitation of the garage keeper. We see no sound distinction between an employee and some other agent of a customer, such as the plaintiff in this case. And it would seem clear that, under the foregoing authorities, the plaintiff in this case must be held to be an invitee rather than a mere licensee.

-companion of patron as invitee.

The liability of the keeper of premises and the right of protection of an invitee may, of course, be a limited one, and cannot go beyond the invitation. There are numerous cases to that effect, many of them holding that an invitee goes beyond the scope of and violates the invitation when he goes into some part of

the premises where he is not invited, and where the purposes of his visit do not warrant him to go. See, for example, Gavin v. O'Connor, 99 N. J. L. 162, 30 A.L.R. 1383, 122 Atl. 842; and see 20 R. C. L. 67-69; 29 Cyc. 452. The duty to protect an invitee is necessarily coextensive with the extent of duty invitation, though

to invitee.

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no further. The invitation need not be express; it may be implied. And unless it is in some manner limited, the character and purpose of the visit must necessarily control. Davis Bakery v. Dozier, 139 Va. 628, 638, 124 S. E. 411; Pauckner v. Wakem, 231 Ill. 276, 14 L.R.A. (N.S.) 1118, 83 N. E. 202; Jones v. Pennsylvania Coal & Coke Corp. 255 Pa. 339, 99 Atl. 1008; Foster Lumber Co. v. Rodgers, Tex. Civ. App. App., 184 S. W. 761; Smith v. Jewell Cotton Mill Co. 29 Ga. App. 461, 116 S. E. 17. Nor would it seem unreasonable to hold that the owner of the premises should anticipate what is usually and customarily duty to anticidone by an invitee within the scope of, and to carry out the purpose of, the invitation. See Ford v. Dickinson, 280 Mo. 206, 217 S. W. 294; True v. Meredith Creamery, 72 N. H. 154, 55 Atl. 893.

pate acts.

Can these principles of law, which seem to be sound, be applied in the case at bar? We think they can, although we find no precedent in the books one way or the other, so far as the particular facts are concerned. There is no testimony in the record that the invitation was limited except by the character and the purpose of the business in which defendant was defendant was engaged, and for which Mr. Baker and the plaintiff were in the garage. It can hardly be said that the plaintiff had merely the right to be in the business office of defendant, as contended by counsel for defendant. He and those who were with him were permitted to be at the place where the automobile stood, when the tire was taken off, and no objection was

(Wyo. -, 255 Pac. 350.)

made to the later presence of plaintiff in the garage, and we know from common experience that men having their automobile fixed in a garage commonly, or at least frequently, drive it out themselves instead of having the garage man or his employees do so for them. The purpose and scope of the invitation to plaintiff, as Baker's agent, was to get the automobile when the tire was fixed. That, in the absence of evidence to the contrary, or at least from the testimony in the record before us, would, we think, include the right of plaintiff to go into the garage and to the place where the automobile stood for the purpose of getting it, and he, accordingly, had the right, if he himself was in the exercise of reasonable care, to be protected from any dangerous condition at that place, created or permitted by de-right of in- fendant, whether vitee in garage. that dangerous con

dition arose from Baker's or somebody else's automobile, or from any other appliance on, or condition in, the floor of the garage. The examination of the tire on Baker's car by the plaintiff would seem to be merely incidental to getting the car, not at all an unusual thing to do, but in accordance with the ordinary practice of men, and a matter that might well be anticipated by the defendant, and which should not, accordingly, at least in the absence of evidence showing a contrary practice, premises scope be held, as a matter of law to be beyond the scope of the invitation and outside of the purpose thereof. We think, accordingly, that the court, in view of the testimony in the case, erred in directing a verdict for defendant upon the ground here considered.

-dangerous

of invitation.

2. We come, then, to consider the question whether or not the plaintiff was guilty of contributory negligence, as a matter of law, so as to justify the court in directing a verdict on that ground. Counsel for defendant have summarized the tes

timony, which is claimed to have justified the court in this action, about as follows: "It appeared that plaintiff was accustomed to driving a car extensively and each day, at a distance of about fifteen to twenty thousand miles a year. He had operated several different kinds of cars for ten or twelve years, including the car in question, and knew practically all the different types of cars. He often had occasion to change tires, and he demonstrated in court the right and wrong way of changing the tire in question; he noticed and called the attention of Leake to the fact that the canvas flap was not inside the rim (casing) and had him change it; he noticed that the ends of the rim were about 2 inches apart, whereas they should have come together, and he called attention to that, knowing from his experience with former cars that the ends should meet; he noticed that the lock was standing up at the top, was wrong side out, and nothing was holding it at all; that there was a crack of one-fourth of an inch or more between the lock and the rim, and he remarked that it wasn't fixed right. Mr. Barton, who was standing behind Loney, saw the same conditions and defects observed by the plaintiff. The latter's eyesight was perfect, and he knew that Leake was unfamiliar with that type of fastening and did not know how to change the tire, and plaintiff assisted Leake in taking the tire off. Yet, with all this knowledge, he put his face down within 10 inches of the wheel and thus exposed himself to the injury when the tire and lock rim blew off."

To this statement, nearly correct, must be added the testimony that when the plaintiff called Leake's attention to the condition of the rim, and asked him whether or not the ends of the rim should meet, Leake answered, "I guess I know what I am doing;" and that plaintiff then did not say anything because he thought that Leake did. It was shown conclusively that the plaintiff

knew of the defective condition of the tire and of the lock rim, but that,

-getting_too close to defectively adjusted rim.

in and of itself, is not, we think, in this case, sufficient to make him guilty of contributory negligence, as a matter of law. Plaintiff, it is true, was bound by what he knew or might have known by the exercise of ordinary care. Cerrano v. PortCerrano v. Portland R. Light & P. Co. 62 Or. 421, 126 Pac. 37. And, if the danger, the peril, was known to him, or if it

should have been -assumption of known to him be

risk.

-what knowl

ery.

cause of his past knowledge, or if it was patent and obvious, so that a man of ordinary prudence should have known of it, he cannot recover. 29 Cyc. 513; 20 R. C. L. 109, 110; Texas Co. v. Washington, B. & A. Electric R. Co. 147 Md. 167, 40 A.L.R. 495, 127 Atl. 752. Defendant was not bound to warn the plaintiff of a peril and risk, which was open and obvious, and was or should have been appreciated by him as a man of ordinary prudence. Wilbourn v. Charleston Cooperage Co. 127 Miss. 290, 90 So. 9. But knowledge or imputed knowledge of danedge bara recov- ger that will bar recovery does not necessarily arise from mere knowledge of a defective condition, by reason of which a man may be injured. Danger may lurk within every defective condition, and yet may not be of such character that men of ordinary prudence would hesitate to expose themselves thereto. The defect and the danger therefrom must be such that knowledge, or imputed knowledge thereof, would cause an ordinarily prudent person to appreciate the risk therefrom. Louisville Gas & E. Co. v. Beaucond, 188 Ky. 725, 224 S. W. 179. In the case of Frost v. McCarthy, 200 Mass. 445, 86 N. E. 918, it was said: "The principle is too well settled to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the

risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk."

In 20 R. C. L. 110, it is said: "From proof that the plaintiff had knowledge as of a physical fact, of the place or appliance by means of which he sustained the injury complained of, it does not necessarily follow that he must have appreciated the danger to which he was exposed therefrom. And it is an appreciation of or opportunity to appreciate the peril that bars him of recovery. Mere knowledge of the offending instrumentality does not constitute contributory negligence."

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These principles were applied in the case of Cody v. Soth, Wyo. - 252 Pac. 1021, where we specifically held that a man cannot be held guilty of negligence, as a matter of law, simply because he passes over a defective walk with knowledge of the defect, and we discussed these principles at length in connection with the defense of assumption of risk in Boatman v. Miles, 27 Wyo. 481, 26 A.L.R. 864, 119 Pac. 933; Lemos v. Madden, 28 Wyo. 1, 27, 200 Pac. 791, and Chicago & N. W. R. Co. v. Ott, 33 Wyo. 200, 237 Pac. 238, 238 Pac. 287. It does not appear from the evidence in this case that the danger was open and obvious, or that a person of ordinary prudence should necessarily have appreciated the danger, after noticing the defects. In fact it seems to us that the accident was rather unusual, so unusual in fact, that, without further evidence on the point, it would seem to be at least a question of fact for the jury as to whether or not the defendant in this case should have anticipated the injury to plaintiff therefrom, and, if that is true, it could not be said as a matter of law, under the testimony in this case, that the plaintiff should have appreciated the danger and the resulting injury to Trial-question him. The issue of for jury-neglinegligence or contributory negligence is ordinarily

gence.

(Wyo. - 255 Pac. 350.)

one to be determined by the jury. 20 R. C. L. 109, 166. That is true, even in a case where the testimony, as in the case at bar, is undisputed, if different minds may fairly arrive at different conclusions, and where the inferences from the facts are not so certain that all reasonable men, in the exercise of fair and impartial judgment, must agree upon them. 20 R. C. L. 169-171; 29 Cyc. 631, 632. Thus it is said in the case of Stevens v. United Gas & E. Co. 73 N. H. 159, 163, 70 L.R.A. 119, 60 Atl. 850, approved in Gentzkow v. Portland R. Co. 54 Or. 114, 135 Am. St. Rep. 821, 102 Pac. 614: "When this defense (contributory negligence) is urged as a ground for a nonsuit or for a verdict for the defendant, as it is in this case, it must appear that reasonable men, acting as the triers of the fact, would find, without any reasonable probability of differing in their views, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men under the same circumstances would readily acquire such knowledge and appreciation."

And in the case of Central R. Co. v. De Busley (C. C. A. 3d) 261 Fed. 566, the court said: "We are, of course, to be guided by the well-settled rule that, where there is uncertainty as to the existence or nonexistence of negligence or contributory negligence, or both, whether such uncertainty arises from a conflict in the evidence or because, the facts being undisputed, fair-minded and reasonable men might honestly draw different conclusions therefrom, the questions are primarily for the jury, and that it is permissible for a court to give binding instructions only when the facts are such that all reasonable men must draw the same conclusions from them."

See also Saylor v. Electric Co. 110 Or. 231, 222 Pac. 304, 223 Pac. 725, and authorities there cited; St. Paul F. & M. Ins. Co. v. Hines, 110 Kan. 53 A.L.R.-6.

In

4, 202 Pac. 582. We do not think that Chicago, B. & Q. R. Co. v. Cook, 18 Wyo. 43, 102 Pac. 657, meant to state a rule contrary thereto. that case the court held that the acts of plaintiff constituted negligence per se, and there was no occasion to refer to the rule here mentioned. And in Hines v. Sweeney, 28 Wyo. 57, 201 Pac. 165, we stated the rule to be as heretofore mentioned, saying: "Even though the facts are undisputed, still, if more than one inference can be drawn therefrom, the question of negligence is for the jury."

While the trial judge must necessarily determine in the first instance whether or not a case comes within the principle above mentioned, and while it may at times be a close point whether it does or not, we do not think that it can be said in this case that all fair-minded men could only draw the inference in this case that the plaintiff was negligent. The very fact of the unusual character of the accident, already referred to, would seem to preclude this conclusion. We know, neither from the evidence in the case, nor from common knowledge, that when the plaintiff observed that the rim was not properly fastened on the tire that he should have known and appreciated the danger to which he was exposing himself when he stooped down to look at the tire, or that such danger was so open and obvious that the average prudent man would have realized the risk. In fact, it would seem from the evidence that plaintiff stooped down to examine and determine more closely just what was the matter with the tire and the rim. We think that the question of contributory negligence was for the jury, and that the court erred in taking it from them.

It follows that the judgment herein must be reversed and the case remanded to the District Court for a new trial.

Potter and Kimball, JJ., concur.

ANNOTATION.

Status of, and liability for injury to, one accompanying owner of car to garage or parking place. [Negligence, § 84.]

This annotation is supplemental to that in 37 A.L.R. 1448.

The reported case (LONEY V. LARAMIE AUTO Co. ante, 73) holds that one who accompanied the owner of an automobile to a garage, and who was left by the owner at the garage for the purpose of paying whatever charges there might be for the repair of the car, and to take the car out of the garage to a place agreed upon, was an invitee rather than a mere licensee, and accordingly had the right, if he himself was in the exercise of due care, to be protected while standing around the car, from any dangerous condition at that place, created or committed by the operators of the garage, whether that dangerous condition arose from the car in which he was interested or someone else's automobile, or from any other appliance

on, or condition in, the floor of the garage.

In Kinsman v. Barton & Co. (1926) 141 Wash. 311, 251 Pac. 563, plaintiff who accompanied the owner of a car to a garage which the defendant permitted its employees to use was held not to be an invitee and was denied recovery, but in that case the majority said that in the circumstances even if plaintiff had driven her own car into the garage she would have been a licensee to whom the defendant owed no duty. The theory on which it was sought to hold the defendant was that in view of certain facts not pertinent to the distinctive subject of the present annotation, it was the defendant's duty to provide safe conditions at a place commonly used in going to and from work. R. P. D.

WALTER LEON KEIFFE
V.

LA SALLE REALTY COMPANY.

RE ITEM COMPANY, Limited.

Louisiana Supreme Court

Discovery, § 16

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(163 La. 824, 112 So. 799.)

compelling corporation to produce papers.

1. A corporation cannot be made to respond to a subpoena duces tecum, when the order does not designate the president or some other officer or agent of the corporation through whom it may act.

[See annotation on this question beginning on page 86.]

Courts, § 227 supervisory powers of supervisory powers of supreme court.

2. In the exercise of its supervisory powers the supreme court is concerned in the prevention of abuses or illegal acts, regardless of the amount involved, and its jurisdiction must be tested from that standpoint alone.

[See 7 R. C. L. 1077; 5 R. C. L. Supp. 437.]

Prohibition, § 3

when writ lies. 3. Generally, applications for writs. of prohibition will not be entertained taining relief is first resorted to in the unless the appropriate method of ob

lower court.

[See 22 R. C. L. 9; 4 R. C. L. Supp. 1450; 5 R. C. L. Supp. 1190; 6 R. C. L. Supp. 1310.]

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