Farrier v. Levin

• Decision Date: 30 December 1959
• Citation: 1 Cal.Rptr. 742,176 Cal.App.2d 791
• Parties: Mary Elizabeth FARRIER, Plaintiff and Appellant, v. AL LEVIN; Al Levin, doing business as Palm Tree Liquor Store, Defendant and Respondent. Civ. 23736.
• Court: California Court of Appeals Court of Appeals

Page 742

1 Cal.Rptr. 742

176 Cal.App.2d 791

Mary Elizabeth FARRIER, Plaintiff and Appellant, v. AL LEVIN; Al Levin, doing business as Palm Tree Liquor Store, Defendant and Respondent.

Civ. 23736.

District Court of Appeal, Second District, Division 3, California.

Dec. 30, 1959.

Hearing Denied Feb. 24, 1960.

Robert H. Lund, Long Beach, for appellant.

Ball, Hunt & Hart and Clark Heggeness, Long Beach, for respondent.

FORD, Justice.

Appellant appeals from a judgment of nonsuit in an action brought by her to recover damages arising out of an accident which, she alleged, occurred on October 27, 1956, in the liquor and delicatessen store operated by the defendant.

Mrs. Farrier, the plaintiff, testified that on the evening of the accident she was returning from a friend's house and was near her own home when she met a Mrs. Roberts. Mrs. Roberts asked her if she would like to ride with her to a store. In response to a question on direct examination as to whether she was going for any purpose of her own, the plaintiff answered, 'No. I just rode along to keep her company.' They first went to a market and then to the defendant's liquor store. As to what happened at that store, the plaintiff testified as follows: 'Well, as we walked in she stopped and we discussed a magazine on the rack. And there was a book out that she particularly was interested in; and I said it was good. I had read it. We were discussing that as we went back towards the rear of the store. As we got, well, opposite of the ice cream and soda container I slipped and fell. * * * Well, my right foot went out from under me * * *' She further said that after she fell she looked at the floor at that point and that there were brown spots on the floor. She described such spots in the following language: 'There were spots on the floor, round spots I'd say, between a quarter and half dollar in size. And they were raised sticky-looking spots. They didn't belong to the floor or the asphalt tile; something on top of it. * * * One had a pushed-up area like something had gone through it.' She further testified that the spot last described was in the vicinity of where her foot had gone out from under her. She then said that Mrs. Roberts helped her up, that they went to the back of the store and she told the clerk she had slipped on something on the floor and had hurt herself, that Mrs. Roberts completed her purchases, that the plaintiff bought nothing, and that they left the store. On cross-examination, Mrs. Farrier stated that she did not have her purse with her when she went into defendant's store. She further testified that the spots she saw after she fell were at least five or six in number and in an area of about two or three feet in size but which area was not 'an exact circle.'

In view of the issues raised on this appeal, it is not necessary to set forth herein Mrs. Farrier's testimony and that of her physician as to her injuries.

Testimony of the defendant was received pursuant to the provisions of section 2055 of the Code of Civil Procedure. He described the nature of his business as follows: '* * * we have both a delicatessen and alcoholic beverages, candy, ice cream, milk, bread and packaged meat, and sundries.' He testified that the store was approximately 48 feet by 40 feet in size. On the date of the accident, he said, there was a soft-drink cabinet adjacent to the ice-cream cabinet. He was not aware of any accident on October 27, 1956, which was a Saturday but, he testified, 'Sometimes our busiest part of Saturday is between 4:00 to 9:00, yes, and at that time we usually keep three employees * * * working in the store.' On that particular day, there were two employees and a 'clean-up boy' in addition to the defendant himself. A maintenance man, who was an independent contractor, came in every Friday morning and scrubbed, cleaned and rewaxed the floor. As to the duties of the clerks with respect to keeping the aisles clean, Mr. Levin testified as follows: 'The routine was, it was supposed to be clean at all times. What hours they did them or when it was done was up to the discretion of the employee, if it had to be done every five minutes or if it had to be done every hour. I would do it myself sometimes. I would sweep the floor. I still do. * * * Not an hourly schedule, no. I didn't pin any boy down to an hourly schedule or a set time scheduled to do it. They were just to do it as they saw it was necessary.'

In answer to a question whether people purchase a bottle of pop from the soft-drink box and drink it there on the premises, Mr. Levin replied, 'We discouraged it on the premises, but we can't stop it. Everytime we see someone doing it we tell them please to do it outside. That has been our policy ever since we opened.' He did not see anyone spill anything around the soft-drink box at any time on October 27, 1956, and no one mentioned any such incident.

Jeff Milledge, who was sixteen years old, was called by the plaintiff as a witness pursuant to the provisions of section 2055 of the Code of Civil Procedure. On October 27, 1956, he was working for the defendant as a 'box boy.' He testified that he never mopped the floors but that he 'swept once a night with a broom.' The testimony of the witness upon which appellant particularly relies is his answer to the question whether, during the time he worked there, there were drippings from ice cream and from soft drinks in the area in front of the ice-cream cabinet and in front of the soft-drink cabinet. That answer was: 'There was always drippings from Coke, any kind of soda pop, and ice cream on the floor.' He further testified that there was a bottle opener on the soft-drink cabinet in October, 1956. He heard about the accident when he returned from dinner on October 27, 1956. On cross-examination, the witness testified that his employment with the defendant terminated in December, 1956, 'about the 16th to the 18th,' and that he had worked for the defendant a month to two months. He said that when he heard of the accident he 'hadn't been working there too long' but that he had then been working there about a month. He further testified that what he had seen on the floor from time to time 'would be in front of the cooler and in front of the ice cream.' In response to a question as to what he saw there from time to time, he replied, 'Just spillings of pop.' He never wiped up such 'spillings' and did not see anyone else do so. By 'spillings' he meant liquid on the floor.

The witness Sidney Wulwick, who was called by the plaintiff, testified that he had a janitorial service and that the defendant was one of his customers. His service was performed on Friday of each week and consisted of completely cleaning the entire surface of the floor, removing the old wax, and applying a double coat of wax. The service was rendered more frequently during certain holiday periods. He testified, in substance, that if a soft beverage was dropped on the waxed floor, it would not penetrate the wax but that it would result in sugar being left on the floor which would tend to make the floor tacky and gummy.

At the close of the plaintiff's case, the defendant made a motion for a judgment of nonsuit based on the ground that the plaintiff was a mere licensee rather than an invitee and on the ground that the evidence failed to show any actual or constructive knowledge on the part of the defendant of the condition which was claimed by plaintiff to have been the cause of her injury. The trial court, relying on Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 314 P.2d 33, granted the motion.

'We may affirm a judgment of nonsuit only when, from a review of the evidence, we can say that, disregarding the fact that there may be a conflict therein, and giving full credit only to that portion of the evidence, whether produced by plaintiff or defendant, which tends to support the allegations contained in plaintiff's complaint, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict for plaintiff if such verdict were given. * * * We are not authorized, and neither was the trial court, in determining a motion for a nonsuit, to weigh the evidence or judge of the credibility of witnesses.' Kersten v. Young, 52 Cal.App.2d 1, 7-8, 125 P.2d 501, 504.

The first question to be determined on this appeal is whether the evidence was such as to permit the trier of fact to draw the conclusion that the plaintiff was an invitee or business visitor or whether, as a matter of law, she was a mere licensee. If she occupied the status of a mere licensee, the judgment of nonsuit must be affirmed because the defendant would then have owed her no duty to keep the premises in a safe condition but only the duty of abstaining from wilful or wanton injury. Of course, with respect to active conduct on his part, he would have the duty of exercising ordinary care for her protection. Oettinger v. Stewart, 24 Cal.2d 133, 148 P.2d 19, 156 A.L.R. 1221; Robbins v. Yellow Cab Co., 100 Cal.App.2d 174, 223 P.2d 80. In this case the accident was claimed to have been due to the condition of the premises rather than to any active conduct on the part of the defendant.

The question thus presented is whether an adult who merely accompanies a friend into a store where the friend intends to make a purchase may have the status of an invitee or business visitor. The question does not appear to have received extensive discussion in any appellate opinion in this state although in Crane v. Smith, 23 Cal.2d 288, at page 297, 144 P.2d 356, at page 361, a case involving injury to a child who accompanied her mother into a market, ¹ it is broadly stated, that: 'In order to be an invitee or business visitor, it is not necessary that the visitor should himself be upon the land for the purpose of the possessor's business but it is sufficient...