Allen v. Paradise Grange No. 490, Inc.

• Decision Date: 08 April 1958
• Citation: 323 P.2d 468,159 Cal.App.2d 247
• Court: California Court of Appeals Court of Appeals
• Parties: Marcla Jeanne ALLEN, a minor, by and through W. C. Allen, her guardian ad litem, Plaintiff and Respondent, v. PARADISE GRANGE NO. 490, Inc., a corporation, Defendant and Appellant. Civ. 9343.

Page 468

323 P.2d 468

159 Cal.App.2d 247

Marcla Jeanne ALLEN, a minor, by and through W. C. Allen, her guardian ad litem, Plaintiff and Respondent, v. PARADISE GRANGE NO. 490, Inc., a corporation, Defendant and Appellant.

Civ. 9343.

District Court of Appeal, Third District, California.

April 8, 1958.

Rehearing Denied May 2, 1958.

Hearing Denied June 4, 1958.

Edward A. Friend, San Francisco, for appellant.

Goldstein, Barceloux & Goldstein, Chico, for respondent.

WARNE, Justice pro tem.

The defendant appeals from a judgment entered against it on a jury verdict in favor of plaintiff, a minor, for personal injuries suffered by said minor and from an order denying defendant's motion for judgment notwithstanding the verdict.

Defendant is the owner of a one-story building which it rents to various organizations for meetings and social gatherings. Plaintiff's parents were members of a dance club, an unincorporated association, called the 'Heavenly Steppers', which rented defendant's hall on Wednesday evenings. No admission was charged to the club's meetings, which were attended solely by the members and their guests. The public was not invited. The cost of renting the hall was defrayed by dues paid by the members of the club. The entire premises were turned over to the Heavenly Steppers and a member of the club was given a key to the hall. There was no retention of control and no official representative of defendant was present. The members occasionally brought their children along. On the night of the accident, plaintiff, a ten year old child, had gone to defendant's hall with her parents who were attending the dance. The club had no organized activities of any kind for the children of the members while attending the dances. At the time arrangements were made for the rental of the hall between the representative of the group and the defendant nothing was said about children and the defendant had no knowledge that any children had ever attended the meetings.

On the night of the accident, plaintiff and several other children were playing a game of 'tag' on the front porch of the building while their parents were dancing and while so engaged one of the children bumped or pushed plaintiff and she fell off the porch, so that her knee struck the bumper of a parked automobile, causing substantial injury. The porch had no guard railing of any kind nor did it have a railing at the time the club rented the hall. The porch was three feet off the ground at the site of the accident.

Appellant contends that the rental of the hall was not for a public or semi-public purpose, but was for a limited ascertained group for its own purposes and that under such circumstances defendant is not liable. We feel that there is merit in this contention. The evidence shows that the rental arrangements were informal. There is no written lease and a member of the club was given a key to the building and no representative of defendant was present on the nights that the club used the hall. The Heavenly Steppers was a definite, ascertained, group of limited membership and the dance meetings were held exclusively for the instruction and enjoyment of the members, except that an occasional guest was invited by a member. But the meetings were, as noted, not open to the public nor was the public invited to them. We feel that, under the facts and circumstances, it may not be said that the meetings were either public or semi-public nor that the tenancy was for a public purpose.

What was said in De Motte v. Arkell, 77 Cal.App. 610, 247 P. 254, a case in which it was held that defendant's motion for a nonsuit should have been granted is applicable to the facts of this case. There a member of an unincorporated lodge which leased the second floor of a building owned by the defendant was killed when a defective guard rail on a porch or platform gave way. The court said, 77 Cal.App. at page 619, 247 P. at page 257:

'* * * The premises were leased to the Odd Fellows' Lodge, of which the deceased was a member, which renders all members of the Odd Fellows' Lodge leasing the premises tenants * * *. The lessee in this case was a private fraternal organization composed of a limited, known, and accepted membership, each one having equal rights and...