Cain v. Friend

• Decision Date: 09 July 1959
• Citation: 171 Cal.App.2d 806,341 P.2d 753
• Court: California Court of Appeals Court of Appeals
• Parties: Robert George CAIN, Plaintiff and Appellant, v. Earl B. FRIEND, Theresa J. Friend, Defendants and Respondents. Civ. 18431.

Page 753

341 P.2d 753

171 Cal.App.2d 806

Robert George CAIN, Plaintiff and Appellant, v. Earl B. FRIEND, Theresa J. Friend, Defendants and Respondents.

Civ. 18431.

District Court of Appeal, First District, Division 2, California.

July 9, 1959.

Christin & Davis, Leonard J. R. Davis, Joseph D. Taylor, San Francisco, for plaintiff-appellant.

O'Connor, Moran, Cohn & Hall, San Francisco, for defendants-respondents.

DRAPER, Justice.

Plaintiff appeals from judgment entered upon directed verdict in this personal injury action.

Defendants, husband and wife, owned their home, and had commenced construction of an addition to it. The husband, a joiner, was building the addition in his spare time. He and his wife had known plaintiff, a journeyman carpenter, for some years. Defendants asked plaintiff's mother to have him come to see them. He did. They discussed the construction work on defendants' home. Plaintiff expected that he would not be employed for two or three days, and volunteered to do a portion of the building job without compensation. Defendants accepted his offer, pointed out the details of the work to be done, and gave him a key to their home, since both of them would be away the next day. Plaintiff testified that defendant husband showed him a ladder and said that he could use it, but defendant denied this. The next day, plaintiff returned to defendants' home as agreed and commenced work. He worked through the morning, using the ladder frequently. In the early afternoon, as he descended the ladder, the bottom rung broke, causing plaintiff to fall some 16 feet to the ground.

This action seeks damages for the injuries sustained in that fall. At the close of plaintiff's case, motion for nonsuit was denied, but after further argument, motion for directed verdict was granted.

A trial court's power to direct a verdict is subject to the same limitations as its power to grant a nonsuit. Pellett v. Sonotone Corp., 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863. Hence we view the evidence in the light most favorable to plaintiff, disregarding conflicts and indulging all reasonable inferences in plaintiff's favor.

The principal issue argued here is whether plaintiff was an invitee or a licensee. An occupant of land owes to an invitee the duty to exercise ordinary care to keep the premises in a reasonably safe condition. Popejoy v. Hannon, 37 Cal.2d 159, 169, 231 P.2d 484. Defendants correctly concede that as to an invitee the like duty extends to chattels to be used by him upon the premises. See Mondine v. Sarlin, 11 Cal.2d 593, 597, 81 P.2d 903. If, however, plaintiff was a mere licensee, defendants' principal duty was merely to refrain from active negligence (Demmon v. Smith, 58 Cal.App.2d 425, 136 P.2d 660; Davis v. Silverwood, 116 Cal.App.2d 39, 253 P.2d 83) or from any overt act which would increase the hazards of the premises (Laidlaw v. Perozzi, 130 Cal.App.2d 169, 172, 278 P.2d 523). If plaintiff was a mere licensee, there is grave doubt of his right to recover.

Whether one is an invitee or a licensee is a question of fact (Laidlaw v. Perozzi, supra), and, where the evidence is in conflict, is for the jury to determine (Koppelman v. Ambassador Hotel Co., 35 Cal.App.2d 537, 96 P.2d 196). Thus the real question is whether there is evidence from which the jury could have found plaintiff to be an invitee.

'It is the purpose for which a person is upon the premises of another which renders him an invitee rather than a licensee.' Popejoy v. Hannon, supra, 37 Cal.2d 159, 169, 231 P.2d 484, 490. In general, 'if that purpose is one of common interest or mutual advantage the person is considered an invitee while a licensee is inferred where the object is the mere pleasure or benefit of the visitor.' Ashley v. Jones, 126 Cal.App.2d 328, 332, 271 P.2d 918, 920. Where the services are for the benefit of the occupant of the premises, the fact that they are performed gratuitously does not negative the performer's status as an invitee. Mondine v. Sarlin, supra, 11 Cal.2d 593, 597, 81 P.2d 903. Even where the benefit to the occupant is intangible, the one rendering services may rely upon them to establish his status as an invitee. Edwards v. Hollywood Canteen, 27 Cal.2d 802, 809, 167 P.2d 729. A carpenter working without compensation in the construction of a church building is an invitee. Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 313 P.2d 192.

Defendants seek to argue that plaintiff was merely a social visitor or guest upon the premises. Such a visitor is a mere licensee (Saba v. Jacobs, 130 Cal.App.2d 717, 718, 279 P.2d 826; Simpson v. Richmond, 154 Cal.App.2d 27, 29, 351 P.2d 435), even though some minor service incidental to the social visit is performed (Free v. Furr, 140 Cal.App.2d 378, 295 P.2d 134; Ashley v. Jones, 126 Cal.App.2d 328, 271 P.2d 918). But the analogy fails upon the facts. In the case at bar, plaintiff went to de...