¶1dissenting:
¶2I agree with the majority’s conclusion (contrary to the ruling of the trial court) that the evidence shows plaintiff to have been a social guest or licensee rather than an invitee. That being so, the general rule is that liability of the defendant would have to be predicated upon wilful or wanton misconduct if the Michigan common law were to be considered the same as that declared by the Illinois courts. (Biggs v. Bear, 320 Ill App 597, 599, 51 NE2d 799; Krantz v. Nichols, 11 Ill App2d 37, 135 NE2d 816; Royal League v. Kavanagh, 233 Ill 175, 180, 84 NE 178.)
¶3Cited by the majority as departing from this rule are some Michigan decisions which employ language to the effect that a host is liable to his licensee for injuries to the latter caused by the host’s “active negligence.” The majority then decide that there was evidence of defendant’s “active negligence” in his failure to warn plaintiff of a “tractor’s instability when operated on an incline,” and in defendant’s son’s direction to plaintiff to go into “a dangerous area” when he told plaintiff to drag a tree to the end of the property and put it on the brush pile. I cannot give any weight to the latter part of this proposition as a basis for liability under the facts of this case, and I don’t believe the majority do either, because in stating their conclusion as to proximate cause, they say only that the jury could properly have found that the cause of the accident was the tractor’s instability when operated on an incline. In this regard it is important to note that the only allegation of negligence contained in the Statement of Claim is that defendant failed to warn plaintiff of the “inherently dangerous characteristics of the tractor.”
¶4The majority must rely, therefore, on the proposition that defendant’s active negligence consisted of his failure to warn plaintiff of this instability characteristic of a tractor. I cannot concur, because to me “failure to warn” and “active negligence” are terms which stand for contradictory concepts.
¶5We should remember that we are considering an exception to the basic principle that a licensee or social guest must take things as he finds them. The exception is that the licensee may recover for wilful or wanton conduct, the setting of a trap, or active negligence on the part of the host. In this context I should think it clear that active negligence must involve an affirmative act on the part of the host which causes injury to his guest. Such an act of negligence, affirmative in character, was the basis for recovery in each of the eases cited in the majority opinion in support of its finding that there is in this case evidence of “active negligence.”
¶6Being unable to find any evidence of active negligence, as I understand the term, I would, therefore, reverse the judgment of the trial court.
¶7I could not agree to affirmance, however, even if I were to accept the majority’s interpretation of “active negligence.” Express or implicit in the majority opinion are findings that there was evidence to go to the jury on the following propositions:
A tractor is unstable when operated on an incline.
Defendant and his son knew or should have known this.
Plaintiff did not know this, and could not have been expected to know it, despite his having operated the tractor for two hours.
The tractor tipped over because of its dangerous instability when operated on an incline.
The tractor tipped over because defendant had not warned plaintiff of its dangerous instability when operated on an incline.
In thus failing to warn plaintiff, defendant’s son was acting as defendant’s agent.
Plaintiff exercised ordinary care for his own safety at the time.
¶8That plaintiff had the burden of proof needs no citation of authority. It is my opinion that he failed to introduce any evidence on any of these propositions. For these reasons, too, I would reverse.
¶9 There was also an allegation that a eharaeteristie of the tractor was that if operated on an incline there was grave danger it would overturn. At the close of the evidence this allegation was stricken because of plaintiff’s failure to adduce supporting proof! Thus we have the anomalous situation in which this court finds that there was evidence for the jury of negligence on the part of defendant in failing to warn plaintiff of the tractor’s characteristic of instability on an incline, while the trial court found that there was no evidence of such characteristic.
¶10 Polston v. S. S. Kresge Co., 324 Mich 585, 37 NW2d 638.
¶11Defendant’s employee negligently lowered an awning, knocking plaintiff from a ladder on which, he was working.
¶12Wieghmink v. Harrington, 274 Mich 409.
¶13Defendant’s employee negligently released coal, thus overloading a hopper upon which plaintiff was standing.
¶14Schmidt v. Michigan Coal & Mining Co., 159 Mich 308, 123 NW 1122.
¶15Defendant’s employee negligently operated a compressor apparatus, causing explosion of a tank near which plaintiff was standing.
¶16Garstka v. Republic Steel Corp., 294 Mich 387, 293 NW 691.
¶17Defendant’s employees negligently operated a crane so as to crush plaintiff against a railroad car.
¶18Anderson v. Welty, 334 SW2d 132 (Mo 1960).
¶19Defendant’s employee drove cattle into an alleyway where plaintiff was standing. In this case the court commented on failure to warn as not constituting active negligence. It stated at page 137:
. . . So, the familiar statement that a bare licensee takes the premises as he finds them usually has been limited by the equally-familiar exception of “wantonness, or some form of intentional wrong or active negligence by the owner or occupier.”
. . . Although a failure to warn, standing alone, is negative in nature [Anderson v. Cinnamon, 365 Mo 304, 282 SW2d 445, 450(8), 55 ALR2d 516], we have no doubt but that the negligence with which instant defendants were charged, and of which they were found guilty, i. e., their failure to warn coupled with their affirmative conduct in driving cattle into the alley when they reasonably should have anticipated or foreseen the presence of persons there, constituted active or affirmative negligence.