Briggs v. John Yeon Co.

• Citation: 122 P.2d 444,168 Or. 239
• Parties: BRIGGS <I>v.</I> JOHN YEON CO., INC., ET AL.
• Decision Date: 25 February 1942
• Court: Supreme Court of Oregon

168 Or. 239

122 P.2d 444

BRIGGS

v. JOHN YEON CO., INC., ET AL.

Supreme Court of Oregon.

Argued December 2, 1941.

Reversed February 25, 1942.

Trial — Testimony

1. The truth or falsity of testimony is for the jury.

Negligence — Invitee

2. An invitation will be implied on behalf of one who enters premises of another in pursuance of an interest or advantage which is common or mutual to him and the owner or occupant, but no more than a license is implied where one enters for his own mere pleasure, convenience, or benefit.

Negligence — Invitee

3. To be a "business visitor", one need not himself be upon land for purposes of possessor's business, but the visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose.

Landlord and tenant — Invitee or licensee

4. Under evidence that plaintiff's friend, who had business to transact with defendant's tenant, was unable to go out alone, and that, at such friend's request, plaintiff accompanied her to defendant's building, where plaintiff was injured when she slipped on waxed floor, whether plaintiff was an invitee or a mere licensee was for jury.

Evidence — Judicial notice

5. It is a matter of common knowledge that wax is a slippery substance.

Landlord and tenant — Negligence — Waxed floors

6. In action against building owner for injuries from fall on waxed floor in tenant's office, evidence as to whether owner's servants negligently applied rubber gloss to linoleum, and whether such negligence caused plaintiff's injuries, was sufficient to make jury case.

Landlord and tenant — Negligence — Waxed floors

7. In action against building owner for injuries from fall on waxed floor in tenant's office, plaintiff's testimony that the part of floor on which she stepped when she slipped felt like wax constituted evidence that wet wax was cause of fall.

Landlord and tenant — Duty to invitee

8. A building owner owed invitee duty to exercise reasonable care not to create and permit to remain an unsafe condition in tenant's office, where owner rendered various services to its tenants, including care of floor on which invitee fell.

Evidence — Voluntary assistance

9. A voluntary offer of assistance, made on impulse of benevolence or sympathy, may not be considered an "admission" of culpable causation; but, if the surrounding circumstances indicate not merely an act of benevolence but some admission of fault on the part of defendant, the evidence may be admissible.

Evidence — Negligence — Admissions

10. In action for negligence against principal, evidence of agent's declarations, expressing opinion that principal was liable without any admission of distinct facts, was inadmissible.

Principal and agent — Authority of agent

11. An agent has no authority to bind his principal by expression of opinion that principal is at fault.

Evidence — Opinion of agent

12. The opinion of an agent based on past occurrences is not admissible as an admission of his principal, and this is doubly true when the agent was not a party to such occurrences.

Evidence — Negligence — Waxed floors

13. In action against landlord for injuries from fall on waxed floor in tenant's office, wherein pleadings raised issue of whether landlord waxed floors of tenants' offices, evidence that supervisor of building told another tenant to "take charge of the accident" was admissible to show landlord's control of property or agency causing injury.

                  See 32 Am. Jur. 574; 38 Am. Jur. 759
                  45 C.J., Negligence, § 222
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Action for negligence for Sonia Briggs against John Yeon Company, Incorporated, and another. From a judgment of involuntary nonsuit, plaintiff appeals.

REVERSED.

Leo Levenson and William J. Prendergast, Jr., both of Portland, for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

LUSK, J.

Plaintiff, Sonia Briggs, has appealed from a judgment of involuntary nonsuit in favor of the defendant and respondent, John Yeon Co., Inc., a corporation, in an action for damages for personal injuries based on negligence. A like judgment was entered in favor of the defendant, Lincoln National Life Insurance Company, a corporation, but no appeal therefrom has been taken.

John Yeon Co., Inc., hereinafter to be referred to as the defendant, owns and operates a fifteen-story office building known as the Yeon building in the city of Portland, Oregon. Lincoln Life Insurance Company, hereinafter to be referred to as the Lincoln Company, was, at the time of the accident to plaintiff, a tenant in the Yeon building with offices on the fifth floor. On the morning of November 7, 1938, plaintiff went to the office of the Lincoln Company with a friend Mrs. Agnes Fitzpatrick (then Mrs. Agnes Crocker), who had business to transact with that company. After entering the main office or reception room and walking a few feet the plaintiff slipped and fell to the floor and was injured.

She alleged in her complaint that the defendant rendered various services to its tenants, including the washing, polishing, oiling and waxing of the floors in the tenants' offices, and that her injury was caused by the negligence of the defendant in (1) placing and using upon the floor of the Lincoln Company's office an excessive amount of oily and waxy slippery substance or material as a waxing or polishing medium; (2) failing to use reasonable care in applying and properly drying this substance or material; (3) allowing the floor after the application of this substance or material to remain in a slippery, hazardous and unsafe condition; and (4) failing to warn plaintiff of this dangerous condition.

Plaintiff's assignment of error, based on the court's order allowing the motion for nonsuit, calls for examination of the record to determine, first, whether plaintiff was an invitee or a mere licensee in the Yeon building, and, second, if she was an invitee, whether there is substantial evidence supporting any of the charges of negligence.

1. On the first question, the testimony is that Mrs. Fitzpatrick was under the doctor's care and was unable to go out alone, and that, at her request, Mrs. Briggs drove Mrs. Fitzpatrick down town in Mrs. Briggs' car and accompanied her to the Yeon building. The claim that Mrs. Fitzpatrick was unable to go to the Yeon building unattended was weakened on cross-examination, but not destroyed. Its truth or falsity was for the jury.

Mrs. Fitzpatrick, having business to transact with the Lincoln Company, was concededly its invitee, and, therefore, the invitee of John Yeon Co., Inc. (Jones v. Bland, 182 N.C. 70, 108 S.E. 344, 16 A.L.R. 1383); and the question is whether, under the particular circumstances of the case, assuming the necessity of a companion to attend Mrs. Fitzpatrick on her errand, the plaintiff enjoyed the same status.

2. According to 38 Am. Jur., Negligence, 759, § 99:

"One is not deemed to have been upon premises by implied invitation unless his purpose was one of interest or advantage to the owner or occupant. An invitation will be implied on behalf of one who enters the premises of another in pursuance of an interest or advantage which is common or mutual to him and the owner or occupant, but no more than a license is implied where one enters the premises of another, not in response to any inducement offered by the owner or occupant, or for a purpose having some connection with a business actually or apparently carried on there, but for his own mere pleasure, convenience, or benefit."

3. The Restatement, Torts, 900, § 332, says:

"It is not necessary that the visitor should himself be upon the land for the purposes of the possessor's business. The visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose. Thus those, who go to a hotel to pay social calls upon the guests or to a railway station to meet passengers or bid them farewell, are business visitors, since it is a part of the business of the hotelkeeper and railway to afford the guest and passengers such conveniences. So too, a child taken by a mother or nurse to a shop is a business visitor; and this is so irrespective of whether it is necessary for the customer to take the child with her in order to visit the shop."

This court, in Napier v. First Congregational Church, 157 Or. 110, 115, 70 P. (2d) 43, said:

"An invitation to use the premises of another is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using them."

The subject is annotated as to some of its phases in 53 A.L.R. 82; 49 A.L.R. 773; 37 A.L.R. 1448.

In accordance with these principles it is held that an invitation to a store does not include one who accompanies a prospective purchaser on the latter's business: Murphy v. Huntley, 251 Mass. 555, 146 N.E. 710, 37 A.L.R. 1447; Fleckenstein v. Great Atlantic & Pacific Tea Co., 91 N.J.L. 145, 102 Atl. 700, L.R.A. 1918 C, 179; Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 118 S.E. 697. See, 38 Am. Jur. 793 § 132. The same rule has been applied to a person who accompanies a car owner to a public garage where the car is kept (Murphy v. Huntley, supra), though there are contrary decisions in Warner v. Lucey, 207 App. Div. 241, 201 N.Y.S. 658, aff. 238 N.Y. 638, and Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 53 A.L.R. 73, the latter case, however, having special circumstances indicating something more than mere tolerance on the part of the garage owner, as is also true of Pope v. Willow Garages Inc., 274 Mass. 440, 174 N.E. 727. Davis v. Ferris, 29 App. Div. 623, 53 N.Y.S. 571, and Howlett v. Dorchester Trust Co., 256 Mass. 544, 152 N.E. 895, cited by the...