Danisan v. Cardinal Grocery Stores, Inc.

• Decision Date: 09 December 1957
• Citation: 318 P.2d 681,155 Cal.App.2d 833
• Court: California Court of Appeals Court of Appeals
• Parties: Vinetta DANISAN, Plaintiff and Appellant, v. CARDINAL GROCERY STORES, Inc., et al., Defendants, Cardinal Grocery Stores, Inc., a corporation; Mario Del Pero, Hugo Del Pero, and Gus Mondon, individually and doing business as Plumas Meat Market, Defendants and Respondents. Civ. 9120.

Page 681

318 P.2d 681

155 Cal.App.2d 833

Vinetta DANISAN, Plaintiff and Appellant, v. CARDINAL GROCERY STORES, Inc., et al., Defendants Cardinal Grocery Stores, Inc., a corporation; Mario Del Pero, Hugo Del Pero, and Gus Mondon, individually and doing business as Plumas Meat Market, Defendants and Respondents.

Civ. 9120.

District Court of Appeal, Third District, California.

Dec. 9, 1957.

As Modified on Denial of Rehearing Jan. 7, 1958.

Hearing Denied Feb. 5, 1958.

C. Ray Robinson, Ronald G. Cameron, Merced, and James G. Changaris, Marysville, for appellant.

Rich, Fuidge & Dawson, Marysville, for respondent Cardinal Grocery stores.

Peters & Peters, Chico, for other respondents.

PEEK, Justice.

This record presents an appeal from judgments based on orders of nonsuit for damages for injuries sustained by plaintiff when she slipped and fell while shopping in the Plumas Food Market in Marysville. The motion for nonsuit was denied as to the defendant Manuel Rose, and thereafter the action was dismissed without prejudice as to him.

The building in which the accident occurred was leased to the three defendants--Cardinal Grocery Stores, Inc., a corporation, referred to herein as 'Cardinal'; Mario Del Pero, Hugo Del Pero and Gus Mondon, doing business as Del Pero-Mondon Meats, hereinafter referred to as 'Del Pero-Mondon'; and Manuel Rose. The defendants sold groceries, meats, and produce respectively. Each defendant had a lease which covered a particular area of the building and provided among other things that the lessee should have '* * * the right of ingress and agress in, to, upon, through and over all parts and portion of said property as may be necessary to carry on and operate * * * [the particular department] for which this lease is given and made, and other conveniences as may be furnished and supplied in and upon said premises for the general use of all tenants hereof and/or patrons of the business conducted thereupon.'

The defendant Del Pero-Mondon occupied the northerly portion of the building. A meat display counter extended from the front to the rear of the building. Behind the counter was a meat-cutting room, as well as refrigerated storage rooms for that department. The center portion of the building was devoted to the grocery area. Storage space for this department was at the westerly side of the building and at the southeast corner thereof. The produce area was located in the northwesterly corner of the building. Immediately to the east of the produce area was a 5-foot partition; however nothing on the north side of the produce area prevented free passage between it and the grocery area. The two customer entrances were at the west or front of the building, one opening into the grocery area and the other into the produce area.

When called as an adverse witness under section 2055 of the Code of Civil Procedure, the manager of the defendant Cardinal testified that there was parking space in front of the building which was used by the customers of all three defendants; that the only entrance for customers was through the two doorways as previously noted; that there was no line, partition or other visible indication of division of the three departments; that there was free movement from one to the other; that customers paid each department for articles purchased but that the employees at the checkout stands would carry out any article purchased from any of the three; that there was a neon sign on the building reading 'Plumas Food Market'; that for the purpose of economy the three defendants usually advertised under the common heading of 'Plumas Food Market' with separate boxes in the ads for each defendant, and each paid for its own space; that the cost of heating and cooling the building, as well as the maintenance of the sign, was prorated among the three lessees; that each lessee followed an imaginary line in maintaining and keeping clean the area in which its business was conducted, although the area in front of the meat department was always swept by employees of Cardinal and never by employees of Del Pero-Mondon; and that it was to their mutual benefit to have the three departments in the same building in that the more people attracted to the premises, the greater the volume of business for each department. The defendants, Hugo Del Pero and Manuel Rose, who were likewise called under section 2055, in general testified to the same effect as Mr. Arnoldy, the Cardinal manager. Rose additionally testified that his wife and son helped him in the store; that on the day of the accident he had swept the produce area at approximately 4 p. m.; that his wife has previously left the store; that he then took over the checkout stand; and that his son was restocking shelves and helping carry out groceries and produce for the customers. He further testified that the parking lot and sidewalks were policed solely by the employees of Cardinal who also were the only persons who opened and closed the permises.

The plaintiff testified that it was her intention upon entering the store to shop in all three departments. Actually she first bought meat, then went to the Cardinal area where she made certain purchases of Groceries and finally went to the produce section. While making her purchases there at approximately 4:30 p. m., she slipped on some substance, presumably an onion skin, and suffered the injuries for which she sought damages. The point where she fell was in the main aisle of the produce area and nearly opposite one of the two customer entrances to the building.

As noted in Prosser on Torts (2d ed.) sec. 78, p. 458, what the author refers to as the 'area of invitation' will of course vary with the circumstances of the case. He further notes that the invitation extends to the entrance of the property and to a safe exit after the purpose which has brought the invitee is concluded, and it extends to all parts of the premises to which the purpose may reasonably be expected sec. 343, p. 940, it is said that in determining sec. 343, p. 940, it is said that in determing '* * * the area included in a business invitation, the nature of the business to be transacted is of great importance.' In line with the general rule as stated, our courts have held: 'The invitation of a proprietor extends not only to all parts of the premises which the patron expressly is invited to use, but also to such parts as he or she is impliedly invited to enter, and the invitation also extends to those portions of the premises where the invitee, under circumstances and conditions of his invitation, would naturally be likely to go.' Gastine v. Ewing, 65 Cal.App.2d 131, 141, 150 P.2d 266, 270. The court therein further held that the determination of the question of '* * * whether the invitation, express or implied, included that part of the premises where the injury occurred is generally not one of law. On the contrary, it is usually a question of fact for the determination of the court or jury.' 65 Cal.App.2d at page 141, 150 P.2d at page 270.

The defendants argue, however, that even if it could be found that they invited the plaintiff to use the produce market as well as their own particular departments, nevertheless at the time of the accident she had concluded her purchases of meat and groceries, had no intention of returning to those departments, and that she was then acting solely for the benefit of herself and Rose. Furthermore, since they had no right to enter upon the area occupied by another and to clean the same, they owed no duty to plaintiff while she was shopping in the produce area. We cannot agree with such arguments. Although plaintiff testified that she had completed her purchases of meat and groceries and that the produce she was buying would have completed the purpose for which she entered the building, yet it could not be said as a matter of law that she had, for those reasons, ceased to be the invitee of the butcher shop and the grocery department since it is obvious that it was such a broad invitation that had been extended to her to come into the building that the jury could hold the purposes of the invitation and of her acceptance through entrance upon the premises had not been exhausted merely because in her mind at the moment she fell she did not intend to make further...