American Nat. Bank v. Wolfe

• Decision Date: 29 October 1938
• Citation: 125 S.W.2d 193,22 Tenn.App. 642
• Parties: AMERICAN NAT. BANK v. WOLFE (two cases).
• Court: Tennessee Court of Appeals

125 S.W.2d 193

22 Tenn.App. 642

AMERICAN NAT. BANK v. WOLFE (two cases).

Court of Appeals of Tennessee, Middle Section.

October 29, 1938

Certiorari Denied by Supreme Court March 4, 1939.

Appeal in Error from Circuit Court, Davidson County; A. B. Neil Judge.

Two suits, the first by Mrs. Emily Mildred Wolfe, and the second by Willie B. Wolfe, against the American National Bank wherein Emily Mildred Wolfe sought to recover damages for personal injuries sustained by her from a fall while descending a stairway in defendant's building, and wherein Willie B. Wolfe sued to recover for the loss of the services of Emily Mildred Wolfe. Judgments for the plaintiffs, and the defendant appeals in error.

Judgments affirmed.

Trabue Hume & Armistead, L. M. Davis, and Reber Boult, all of Nashville, for plaintiff in error Bank.

White & Howard, of Nashville, for defendants in error Wolfe.

CROWNOVER Judge.

These two suits were, by agreement, tried together in the Circuit Court of Davidson County, as they arose out of the same accident.

Mrs. Emily Mildred Wolfe sued to recover damages for personal injuries sustained by her from a fall while descending a stairway leading from the first floor to the basement floor in the defendant's bank.

Her husband, Willie B. Wolfe, sued to recover for the loss of her services.

Each declaration contained two counts. In the first count of each it was averred that the defendant Bank maintained a stairway in an unsafe and dangerous condition in a portion of the bank which the public was invited and expected to use; that the steps were constructed of marble, the treads of which were worn to some extent so as to make a sloping surface, and there was a hand-rail on only one side thereof; that the plaintiff Mrs. Wolfe slipped on the worn and slick steps, was unable to catch hold of anything to check her fall because of the absence of a hand-rail on the left side thereof, and fell to the bottom of the stairway, sustaining injuries.

In the second count it was averred that the defendant Bank, by maintaining a stairway with a hand-rail only on the right side thereof, violated the building ordinances of the city of Nashville, which require that a stairway in a building of this kind shall have a hand-rail on both sides thereof; and that the failure of defendant to have a hand-rail on the left side was the proximate cause of the plaintiff Mrs. Wolfe's injuries.

The defendant pleaded the general issue of not guilty in each case.

The cases were tried together to a jury. At the close of the plaintiffs' evidence and again at the conclusion of all the evidence the defendant Bank moved the court for peremptory instructions in its favor, which motions were overruled, to which the defendant excepted. The jury returned verdicts of $1,000 in favor of Mrs. Wolfe and $250 in favor of Mr. Wolfe and against the defendant Bank.

The defendant's motion for a new trial in each case was overruled, to which it excepted, and appealed in error to this Court, and has assigned errors as follows:

There is no evidence to support the verdicts, and the court erred in overruling defendant's motions for a directed verdict in each case at the conclusion of all the evidence.

The defendant, the American National Bank, owns a six-story building in the city of Nashville, on the northeast corner of Union Street and Fourth Avenue, North, which building was constructed in 1916. The Bank occupies the three lower floors, and the other three floors are leased to various tenants. On the first, or ground, floor the Bank maintains a regular banking department, with the various tellers' windows, and offices, all separated from the lobby by counters and grilles.

The Safety deposit department is in the basement, where many deposit boxes are rented to the public. The entrance to this department is by means of a stairway leading from the main floor of the Bank, over the entrance to which is a sign reading, "Safety Deposit Vaults." In the basement is a hall, or lobby, into which the stairway descends, and also two elevators descend into same, which serve the bank building. This hall in the basement contains chairs and a settee. On one side of it is the directors' room, and on the other the safety deposit vaults, which are separated from the hall or lobby by a steel grille.

There is nothing at the entrance to the stairway to indicate that it should be used only by the patrons of the safety deposit boxes, and nothing to suggest that the Safety Deposit Department is not a part of the Bank which is open to the public.

This stairway has a hand-rail on the right side, but none on the left side, but has a marble wainscotting on that side. The steps are marble, slightly worn--the treads of these first two steps being worn down about 3/16 of an inch. The steps are about 54 inches wide, and the stairway was sufficiently lighted.

The plaintiff, Mrs. Wolfe, neither had an account with the Bank nor a rented safety deposit box. She was 52 years of age, and lived in the country and had led an active life. She went into the Bank to have a five dollar bill changed. When she received the change she put it in her handbag and began to look about for a ladies' rest room. She saw none on the first floor. Thinking there might be one on the basement floor, she started down this stairway, without putting her hand on the hand-rail. As she put her right foot on the first step below the main lobby level, her foot slipped; whereupon she attempted to steady herself by placing her left foot on the next step below, but this foot also slipped and she fell against the left side of the enclosed stairs; she attempted to catch hold of the wall, but there was no hand-rail on the left side, and she fell the entire length of the stairs to the landing below, breaking her leg.

There was no foreign substance on the steps.

There was a rest room on the basement floor, but it was not a public one. It was intended for the use of the female employees of the Bank, who reached it by means of a stairway at the opposite end of the building.

There was no public rest room in the Bank or in that building.

The Bank invites the public to come into its banking house and make use of its facilities.

It has thirty or forty thousand customers and about sixteen hundred renters of safety deposit boxes.

The questions involved are:

(1) Was the plaintiff an invitee at the time and place she was injured, or merely a licensee?

(2) Was the absence of a hand-rail on the left side of the stairway the proximate cause of her fall?

(3) Was the plaintiff guilty of contributory negligence?

1. The principal contention in the case is whether Mrs. Wolfe was an invitee, or merely a licensee, on the defendant's premises at the time she was injured.

It is admitted by the Bank that when Mrs. Wolfe entered the main banking room on the first or ground floor to obtain change for a five dollar bill she was an invitee.

The Bank, therefore, owed her the duty to exercise ordinary care and prudence to render the premises reasonably safe for her visit. 3 Shearman v. Redfield, 6th ed., secs. 704 and 706; 45 C.J. 823-829; 1 Thompson on Negligence, 2d ed., sec. 985; Rosenbaum v. Shoffner, 98 Tenn. 624, 40 S.W. 1086; Dush v. Fitzhugh, 70 Tenn. 307, 2 Lea 307, 309.

But it is insisted by the Bank, (a) that when this business was finished and she began to wander around the bank looking for a rest room, she was no longer an invitee, but a licensee, as she had turned aside to pursue a purpose of her own; and (b) that when she started down this stairway to the basement she went beyond the limits of her invitation, as this stairway was intended for the use of renters of safety deposit boxes only; that the duty of the owner to keep the premises in reasonably safe condition for those impliedly invited thereon extends only to those parts of the premises where the person invited is expected to go. Citing, Worsham v. Dempster, 148 Tenn. 267, 275, 255 S.W. 52; Chattanooga Warehouse & Cold Storage Co. v. Anderson, 141 Tenn. 288, 294, 210 S.W. 153; 45 C.J. 830-832; 1 Thompson on Negligence, 2d ed., secs. 988-990.

But we think these contentions are unsound for the following reasons:

(a) "A person who goes upon premises for business purposes is not deprived of the right to protection against defects by the fact that, at the moment of the injury, he was not engaged in the business for which he came, but was pursuing a purpose of his own." 20 R.C.L. 69, sec. 60; Pauckner v. Wakem, 231 111. 276, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045, 17 Ann.Cas. 576 and notes; Randolph v. Great A. & Pac. Tea Co., 3 Cir., 64 F.2d 247.

(b) After carefully reading the evidence we are of the opinion that the plaintiff, when she began to descend this stairway, had reasonable ground, from the arrangement of the building, for believing that she was invited or expected to go down the stairway.

If not a question for the court, it was certainly a question "for the jury to visualize the situation from the evidence, and decide whether the plaintiff had reasonable ground from what she saw for believing that she was invited or expected to go where she did go." MacDonough v. F. W. Woolworth Co., 91 N.J.L. 677, 103 A. 74.

The jury, by its verdict, evidently found that she believed she was invited to use the stairway, and that the stairway and basement lobby were open to the public.

"An invitation [to enter premises] is implied when the owner, by acts or conduct, leads another to the belief that the use is in accordance with the design for which the place was adapted and allowed to be used in mutuality of interest." Robinson v. Leighton, 122 Me. 309, 119 A. 809, 30 A.L.R. 1386,...