Bolden v. Independent Order of Odd Fellows

• Decision Date: 04 March 1925
• Docket Number: 18871.
• Citation: 133 Wash. 293,233 P. 273
• Court: Washington Supreme Court
• Parties: BOLDEN et ux. v. INDEPENDENT ORDER OF ODD FELLOWS.

233 P. 273

133 Wash. 293

BOLDEN et ux. v. INDEPENDENT ORDER OF ODD FELLOWS.

No. 18871.

Supreme Court of Washington, En Banc.

March 4, 1925

Appeal from Superior Court, Snohomish County; Bell, Judge.

Action by Ira J. Bolden and wife against the Independent Order of Odd Fellows. From a judgment of dismissal, plaintiffs appeal. Affirmed.

E. C Dailey and A. E. Dailey, both of Everett, for appellants.

Clarence J. Coleman and G. M. LeCocq, both of Everett, for respondent.

MACKINTOSH J.

This is an appeal from a judgment of dismissal rendered upon the appellants' refusal to plead further after a demurrer had been sustained to their complaint, which alleged that the defendant was the owner of a lodge building in the town of Sultan; that on the 23d of September, 1922, the appellant attended a dance 'given by the Sultan Commercial Club,' which was held on the second floor of the building, in the nighttime, 'said hall being then and there at all times in charge of defendant'; that the appellant wife was injured by falling down a dark stairway and that the respondent 'had carelessly and negligently failed to have any light burning at the head of said stairway in said building, and by reason thereof plaintiff was injured.' The question is: Does this complaint state a cause of action against the respondent?

It is first to be observed that the complaint does not describe the relations between the respondent and the Sultan Commercial Club. From all that is contained in the complaint, the Sultan Commercial Club may have been a bare licensee or a trespasser, though it is probably true that by implication the latter relationship is negatived by the allegation that the hall was at all times in charge of the respondent.

The first principle to be borne in mind is that the landlord, in order to be liable in damages to a guest, invitee or licensee of the tenant, must be liable to the tenant himself. The guest's, invitee's or licensee's right of recovery is no greater than the right of the tenant or person occupying the premises under the owner. The complaint is silent as to whether the appellant attended the dance given by the Sultan Commercial Club as a guest, invitee or licensee, but giving the complaint the most favorable interpretation possible for its sufficiency, it may be assumed that by the allegations it is intended to state that the appellant attended the dance as a guest or invitee or licensee of the Sultan Commercial Club, and that she was not a trespasser.

The liability for negligence rests upon an express or implied duty which the person sought to be held liable is under to the person who suffered the injury, and that duty, in the case of the owner of premises to the person seeking damages because of his negligence, is the duty which the owner owes to the person actually occupying the premises; in other words, if the Sultan Commercial Club were the tenant of the respondent, the appellant, if she were the guest, invitee or licensee of the tenant, could only recover if the tenant could. If the Sultan Commercial Club were a licensee of the respondent, the appellant's right to recover would be that of a licensee, and, if the Sultan Commercial Club were a trespasser, the appellant's rights would be those of a trespasser. This rule was last expressed by this court in the case of Uhl Bros. v. Hull, 226 P. 723, where it is said: 'A subtenant has no greater rights against the owner than has his immediate landlord, the sublessor.' To the same effect see Hogan v Metropolitan Building Co., 120 Wash. 82, 206 P. 959, where Judge Mitchell, for the court said:

'Concerning the liability of the owner, it is to be noticed that the plaintiff entered the premises under the right of occupancy and by the solicitation or invitation of the tenant. In such case, the owner owes no greater duty to such third person than he does to the tenant himself.'

This rule is found expressed in Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722, 29 P. 451, and Baker v. Moeller, 52 Wash. 605, 101 P. 231, from which latter this quotation may be taken:

'No contractual relation having existed between the appellant and the respondent, and appellant having entered upon the premises only as the servant of the lessee, his right to recover against the respondent is in no manner superior to that of his employer.' Also, in Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L. R. A. (N. S.) 917, where this occurs:

'The tenant's guest, like his servant, is usually held to be so identified with the tenant that his right of recovery for injury as against the landlord is the same as that of the tenant would be had he suffered the injury. The guest cannot be regarded as possessing the independent rights of a stranger. His right of recovery

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