# Husted v. Richards > Supreme Court of Arkansas · January 20, 1969 · 245 Ark. 987 URL: https://www.frixlaw.com/law-library/cases/7817796 ## Case - **Full name:** Mary Husted, Adm'x v. Mike Richards - **Court:** Supreme Court of Arkansas - **Decided:** January 20, 1969 - **Citations:** 245 Ark. 987; 436 S.W.2d 103; 1969 Ark. LEXIS 1390 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** Brown, Fogleman - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7817796 ## Opinion text John A. Fogleman, Justice. I respectfully dissent. The only question raised by appellant relates to the status of the deceased, Leonard Husted. No other issue is raised by the appellant affecting the standard of care measuring the duty owed by appellees to the decedent. I respectfully submit that there is evidence in the record from which inferences indicating that Husted was an invitee may reasonably be drawn. When this •evidence is considered in the light most favorable to appellant and all reasonable inferences favorable to appellant drawn therefrom, there was a jury question as to the status of appellant’s decedent. In considering this question, only those statements of appellees Richards and Willis adverse to them should be considered because their testimony cannot be considered as undisputed, and a jury might choose not to believe it. The testimony showed substantially the following: Leonard Husted was a dragline and backhoe operator, and had worked in that capacity for appellee Richards, after he had partially retired and qualified for Social Security benefits. Sometimes he worked a week at a time and sometimes two or three days a week. Richards paid him in cash but on some occasions gave him used building materials. Husted made as much as $600 a year in addition to the materials. He had worked practically all the year 1967 for Richards. Hasted had told Richards sometime before Christmas that he was dae $195 and owed Richards $75 for material. Richards paid Hasted a total of not more than $300 daring 1967. Husted received a call from Richards on the night before his death. He was familiar with a machine belonging to Richards which had been damaged while rented to someone else. Richards asked Hasted to come to his office to talk to an insurance adjaster, daring the morning before his fatal injury, which he did. Although he remained there from 8:00 a.m. to 10:00 a.m. on the day of his death, the adjaster did not ask him any questions. Richards did not pay Hasted anything for the time thus spent or for his expense in coming there. He had told Hasted that he could take the machine and dig a ditch across a road where Richards wanted to put a pipe. Hasted left Richards’ office and reached the demolition site daring the morning. Richards had previously given Hasted permission to go to the demolition site and get scrap lumber and materials. Hasted had gathered materials there for a day or two prior to the date he was killed. This was known to Richards, who had even helped load material on Husted’s truck on the day before. After lunch on the day of fatal injury Husted came back onto the premises carrying a sledge hammer. He stood talking to appellant Curtis Willis, the loader operator, for about five minutes, while holding the sledge hammer. Willis then proceeded to a track driven by Whitfield some 20 feet from the building, and Hasted went into the building. Whitfield saw Hasted trying to knock out two-by-fours, and did not know what there could have been to prevent Willis from seeing him. Whitfield did not see Hasted come oat of the building. Daring the 15-minute period Hasted was in the building, he was seen throwing a two-by-four oat a second-story window by one Claude Sutton, who was watching from across the street. Willis told a police officer that he had told Husted to get down out of the building right before he ran into it. It was certainly reasonable to infer that Richards wanted to have the services of Hnsted readily available and knew that permitting him to salvage building material would help to accomplish this purpose. This was certainly to the mutual benefit of the parties. It might well have been inferred that the permission to salvage these materials was compensation to Hnsted for the two hours spent at Richards’ office or for the dragline work Richards wanted done. An inference that Willis knew that Hnsted had gone into the bnilding after their post-lunch conversation would not be unreasonable. Certainly Whitfield knew that Hnsted was in the building. It is not proper for us to consider testimony of either Richards or Willis in determining whether there was a limitation or termination of the invitation. We are to determine whether there was evidence from which a finding could have been made that Hnsted was an invitee, even though we might think there was a preponderance of contrary evidence. I would reverse and remand for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7817796. Public record. Not legal advice.