Mulcrone v. Wagner , 212 Minn. 478 ( 1942 )

It seems to me that there is no analogy between a fireman entering a building to extinguish a fire and an inspector entering it to make an inspection. If the inspection here had been made by a building inspector instead of a fireman, I think that no one would say that the inspector was a fireman or that the rules applicable to a fireman were applicable to him. It is fortuitous in the instant case that the inspection service was performed by members of the fire department. It is the nature of the service and not the official designation of the person rendering it which should determine the legal relationship and resulting liability of the parties.

The instant case, as the majority opinion points out, is different from Hamilton v. Minneapolis Desk Mfg. Co. 78 Minn. 3,80 N.W. 693, 79 A.S.R. 350, in that in that case a fireman was injured while he was attempting to extinguish a fire, and in the instant case a fireman was injured while making an inspection. Since we were very careful, in the Hamilton case, to limit our decision to the precise facts of the case, we ought not to extend the rule to other cases not within its facts and the principles there announced, unless compelled to do so by well settled principles of law.

The weight of authority supports the rule that "an inspector who, in the performance of his official duty, goes upon premises which are the subject of inspection is not a mere licensee, but is entitled to the rights of an invitee, in determining liability to him for injury suffered through the unsafe condition of the premises." 28 Am. Jur., Inspection Laws, § 8. This rule has the support of many well considered decisions, including some by the eighth circuit court of appeals. Cudahy Packing Co. v. McBride, (8 Cir.) 92 F.2d 737; The City of Naples (8 Cir.) 69 F. 794 (per Caldwell, Circ. J.); Dashields v. W. B. Moses Sons, 35 App. Cas. (D.C.) 583, 31 L.R.A.(N.S.) 380; Finnegan v. Fall River Gas Works Co. 159 Mass. 311,34 N.E. 523; Toomey v. Sanborn, 146 Mass. 28, 14 N.E. 921; Young v. People's G. E. Co. 128 Iowa, 290, 103 N.W. 788; Restatement, Torts, § 345, comment c, illustration 2. These authorities are in accord with the rule that where a person is so circumstanced with respect to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty arises to exercise reasonable care under the circumstances to avoid the injury. Depue v. Flatau, 100 Minn. 299, 111 N.W. 1, 8 L.R.A.(N.S.) 485; Heaven v. Pender, L. R. 11 Q. B. D. 503.

In Emery v. Minneapolis Ind. Exposition, 56 Minn. 460, 463,57 N.W. 1132, 1133, we held that where a person enters upon the premises of another, either as an invitee or licensee, the possessor of the premises owes such person the duty to exercise reasonable care for his safety, saying:

"It is not material whether the deceased was in the room by invitation, either express or implied, or simply by the permission, — license, — of defendant corporation, for in either case the law imposed upon it the duty of exercising ordinary care. The invitation or license, express or implied, created this duty."

We are committed in principle to this rule in inspector cases. Lundeen v. G. N. Ry. Co. 141 Minn. 180, 169 N.W. 702.

Since the Hamilton case is not strictly in point, we ought not to feel embarrassed in adopting the rule of the inspector cases which I have pointed out. Stare decisis ought never to be the excuse for decision where reason is lacking. Nor ought we to feel embarrassed to overrule the case if need be. After all, we have overruled cases which we deemed unsound in principle even where a statute was construed and the construction presumably was acquiesced in by the legislature. See dissent in Park Const. Co. v. Independent School Dist. 209 Minn. 182, 189, 213,296 N.W. 475, 135 A.L.R. 59. There I pointed out that we ignored the doctrine of stare decisis at will. While I protested against departure from the doctrine where it is properly applicable, I think that this is a case where we are not bound by our prior decision and hence are free to adopt a rule based upon what appears to be sound principle and reason.

MR. JUSTICE STONE, absent because of illness, took no part in the consideration or decision of this case.