Ashley v. Jones

• Citation: 126 Cal.App.2d 328,271 P.2d 918
• Court: California Court of Appeals
• Decision Date: 29 June 1954
• Parties: ASHLEY et al. v. JONES et al. Civ. 4817.

Page 918

271 P.2d 918

126 Cal.App.2d 328

ASHLEY et al. v. JONES et al.

Civ. 4817.

District Court of Appeal, Fourth District, California.

June 29, 1954.

Rehearing Denied July 26, 1954.

Hearing Denied Aug. 26, 1954.

Edward L. Butterworth, Los Angeles, for appellants.

Luce, Forward, Kunzel & Scripps, James L. Focht, Jr., San Diego, for respondents.

BARNARD, Presiding Justice.

This is an action for damages for injuries to Mrs. Ashley, alleged to have resulted from the slipping of a rug in the home of the defendants. The accident occurred on January 1, 1951.

Mr. Ashley is the pastor of a church in Compton. He was formerly the pastor of a church in San Diego which is attended by the defenants. This San Diego church had acquired a parcel of land and Mr. Jones was chairman of a committee which was seeking to dispose of this land. The two couples were warm friends and had frequently visited in each other's homes, at times staying overnight. Some months prior to December, 1950, Mr. Jones called on Mr. Ashley in Compton, seeking his advice concerning this land. In December, 1950, Mrs. Jones, at her husband's request, wrote to Mrs. Ashley asking her and her husband to come to San Diego, stating that Mr. Jones was anxious to talk to Mr. Ashley about this land. Mrs. Ashley replied that they could come during the coming holidays. Mrs. Jones replied that they appreciated Mr. Ashley's planning to come and asked them to stay overnight New Year's night, saying that they would like to invite some friends in to meet them. Mrs. Ashley replied that they would be able to stay that night but would have to leave early the next morning.

Mr. and Mrs. Ashley came to the Jones home toward night on December 31, 1950. When they arrived Mr. Jones told Mr. Ashley that he appreciated his coming down to consult him about the disposal of this property. Mr. Ashley testified that his sole purpose in coming was to give Mr. Jones information and advice about this land, and Mrs. Ashley testified that she nearly always traveled with her husband to look out and care for him. During that evening the two men discussed the land problem and the next day had further talks concerning it.

Shortly before 5:00 p. m. on January 1, 1951, Mr. Jones returned to his home, noticed that the women were in the kitchen, and went to his bedroom. Mr. Ashley was not in the house at the time of the accident. The women were preparing refreshments for the expected guests. Mrs. Jones noticed it was getting late, and said she would not be through in time to greet the guests. Mrs. Ashley said she would freshen up and answer the door. As she passed through a hall on the way to her bedroom she stepped on a rug which slipped, and she fell on her left side. This hallway was well lighted, and this was a 4 X 6 rug. There was no pad under the rug and the rug was not fastened to the floor. Mrs. Ashley got up, straightened the rug and went into her bedroom. She felt pain in her shoulder, arm and leg. She answered the doorbell and received some 15 or 20 people who came. After the guests left, about 8:30 p. m., she told her husband and the defendants about the fall. The Ashleys left for home the next morning, and on January 14, 1951, consulted a doctor. On January 20, Mrs. Ashley came to San Diego and stayed with the defendants some ten days while she was having some dental work done. She was treated by a doctor at home during February and March, and on April 9 consulted a doctor in Santa Barbara. She spent some seven weeks in a hospital and then wore a brace for some six months. She testified that her first doctor said the trouble might be bursitis but that there was never any definite decision that it was bursitis. Evidence was received as to various medical expenses.

Mrs. Ashley testified that the floor in this hall was a dark hardwood, such as you would find in the average home, and that Mrs. Jones told her after the accident that she had had a boy clean the floors recently but had not had them highly polished or waxed; that she had walked over this rug on many occaions before; that on such occasions it had never 'slipped at all', or moved 'in the least'; and that she had never seen anyone slip on it. Mrs. Jones testified that she had heard rather than seen her young daughter or one of her little friends accelerate her speed, jump on the rug and cause it to slip; that she had then seen the rug disarranged; that to her knowledge neither of the plaintiffs had ever slipped on the rug on any other occasion; that as a usual thing the rug did not move when she stepped on it; that on some occasions when she stepped on the rug 'it has moved, it has been disarranged'; that when it moves it is a rare occasion; that she has walked over the rug daily without any difficulty; that while the rug has moved at times 'I haven't slipped particularly. The rug has been disarranged'; that at times the way you put your foot on it would cause the rug to slide, sometimes more, sometimes less; and that she did not recall ever telling the Ashleys that this rug had slipped on occasions. Mr. Jones testified that in nearly every case when he would walk on the rug it would not slip; that on occasions when he would step on the rug it would move more or less; that it had never occurred to him that the rug might slip and injure someone; that 'It never slipped that much with me'; that on every occasion when he saw either of the plaintiffs walk on the rug it remained stationery; that he had never told the plaintiffs that there was no pad under the rug; and that he had never warned them that the rug had a tendency to slip.

At the conclusion of the plaintiffs' evidence the court granted the defendants' motion for a nonsuit saying, among other things, that all of the parties who knew anything about the accident had testified, that there was no conflict in their testimony on any material matter, and that 'I feel that if there were a verdict in favor of the plaintiff it would be my duty to set it aside.' The plaintiffs have appealed from the judgment which followed, contending that Mr. Ashley was an invitee instead of a licensee; that Mrs. Ashley was on the premises for the convenience of her husband and acquired the same status; that it was a question of fact for the jury wheter the maintenance of this known hazardous condition constituted negligence; and that even if they were licensees the respondents breached their duty to give warning of this hazardous condition since they knew that an unreasonable risk existed and had reason to suspect that it would not be discovered by the appellants.

We agree with the trial court's conclusion that on the undisputed evidence a new trial should be granted in the event of a verdict for the plaintiffs. However, in view of the...