Fort Wayne Nat. Bank v. Doctor, 1269A247

• Decision Date: 13 September 1971
• Docket Number: No. 1269A247,No. 1,1269A247,1
• Citation: 272 N.E.2d 876,149 Ind.App. 365
• Parties: FORT WAYNE NATIONAL BANK, Administrator of the Estate of Maria Doctor, Deceased, Plaintiff/Appellant, v. Beryl DOCTOR, Defendant/Appellee
• Court: Indiana Appellate Court

Page 876

272 N.E.2d 876

149 Ind.App. 365

FORT WAYNE NATIONAL BANK, Administrator of the Estate of Maria Doctor, Deceased, Plaintiff/Appellant, v. Beryl DOCTOR, Defendant/Appellee.

No. 1269A247.

Appellate Court of Indiana, Division No. 1.

Sept. 13, 1971.

William F. McNagny, Phil M. McNagny, Jr., Robert Thompson, Jr., Barrett, Barrett & McNagny, Fort Wayne, Gates, Gates & McNagny, Columbia City, of counsel, for appellant.

Arthur W. Parry, John H. Krueckeberg, Fort Wayne, Parry, Krueckeberg, Lee & Duemling, Fort Wayne, for appellee.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This appeal concerns an action for damages for wrongful death arising out of a fatal fall down a basement stairs by a daughter-in-law while visiting in the home of her mother-in-law.

The Doctor family gathered at the home of the Appellee-Defendant mother-in-law, Mrs. Beryl Doctor (Mother Beryl) to celebrate the birthday of her son's wife, Maria Doctor (Maria).

Returning from church, the Doctor family enjoyed the noon meal in the recreation room which was located in the basement of Mother Beryl's home. She and Maria shared the work of preparing the food in the kitchen upstairs, and each of them carried the food down the stairs to the recreation room in the basement. The noon meal was held without incident.

In the evening, Mother Beryl asked her son, Lawrence Doctor, if they should eat the evening meal in the basement recreation room. He affirmed this idea. Accordingly, the two women started the necessary preparations.

Maria Doctor then began a trip down the stairs to the basement carrying a platter of food. She was wearing high heels. Shortly after she began the descent, a loud noise was heard. Going to the head of the stairs, Mother Beryl saw Maria lying on the floor between the stairs and the entrance to the recreation room with a platter of food on the floor beside her.

The basement stairs were lit by an unprotected light bulb wiich shone in the face of one descending the stairs. The four top steps were carpeted while the lower steps were painted and not carpeted.

Maria had on previous occasions done her washing in this basement.

Investigation indicated that Maria fell and struck her head against a solid surface causing the injuries from which she died on the 7th day of February, 1963.

The Plaintiff-Appellant Fort Wayne National Bank (the Bank) was appointed Administrator of Maria's Estate, and now seeks damages from Mother Beryl for the benefit of son Lawrence and her grandchildren.

The Complaint alleged certain defects: improper lighting in that an unprotected bulb shone in the face of the one descending the stairs; a confusing change of surface in that the top four steps were carpeted while the lower steps were not; the lower steps were painted and slippery; and that Mother Beryl failed to warn Maria of the danger on the stairs.

Mother Beryl's Answer denied any negligence on her part and alleged Maria voluntarily incurred the risk of injury to herself in the use of the stairway by reason of the fact that she had been in the mother's home and made use of the stairs on previous occasions as well as on the day in question.

This case has a history. It was previously tried with a jury returning a verdict for $38,000. At this prior trial in which Mother Beryl was the defendant, she moved for a directed verdict on the grounds that Maria was a social guest at her residence at the time of the fatal injury and that, as a matter of law, the facts introduced showed circumstances under which defendant had no duty of care to Maria. This motion was overruled and judgment entered on the $38,000 verdict. Mother Beryl then appealed to this court, listing two specifications of error which are relevant here:

1. The overruling of a Motion for Directed Verdict.

2. Mother Beryl objected to certain instructions given to the jury.

In the previous appeal to this court, reported as Doctor v. Fort Wayne National Bank (1968), 143 Ind.App. 69, 238 N.E.2d 289, we reversed on the sole grounds of the presence of a mandatory instruction prejudicial to Mother Beryl. There was no treatment or even mention by the court as to the propriety of overruling of the Motion for a Directed Verdict on the grounds indicated.

The case was then remanded without an order for new trial to the Allen Superior Court No. 1, and venue was subsequently changed to Whitley Circuit Court. No further pleadings were filed, nor any evidence introduced until November 12, 1969, when Mother Beryl filed a Motion for Summary Judgment. After considering the Motion and accompanying Affidavits, including a verified transcript of the former trial, the court granted the summary judgment in favor of Mother Beryl.

ISSUES--Two questions must be decided:

I. Is the doctrine of the 'law of the case' a barrier to the lower court ruling on the Motion for Summary Judgment in favor of Mother Beryl?

II. Did the trial court properly grant summary judgment on the grounds that, as a matter of law, the facts in this case preclude recovery under the social guest rule?

I. Plaintiff-Bank argues that under the Indiana doctrine of 'law of the case,' the Motion for Summary Judgment should have been denied because we reversed the original appeal on grounds of an improper instruction and therefore we had to assume that the directed verdict was correctly overruled. Thus, by implication this court held there was sufficient evidence to take the question of Mother Beryl's liability to a jury.

Mother Beryl says the 'law of the case' only applies to matters which were expressly decided by the court on appeal and no implication arises as to any other questions not so decided.

II. Plaintiff-Bank admits arguendo that Maria was a social guest and acknowledges a landowner is only liable to a social guest for injury sustained as a result of a hidden defective condition which the landlord does or should have knowledge of and fails to warn the guest. There are exceptions, though, it is argued, where:

1. the landowner makes use of the social guest as a domestic helper;

2. the landowner maintains the premises in a defective and dangerous condition and sends the social guest into known danger without warning.

Mother Beryl's position is that Maria was a licensee by permission and, therefore, takes the premises as she finds them as to any defects thereon, and, further, that Maria had knowledge of any defects existing in connection with the basement stairs and that if any negligence occurred at all it was of a 'passive character.'

DECISION

I. It is our conclusion that the Motion for Summary Judgment was properly granted, because 'the law of the case' does not include questions which were not decided but which might have been decided in a previous appeal.

As early as 1902, Wine v. Woods (1902), 158 Ind. 388, 63 N.E. 759, held that 'only points decided become the law of the case.' Such questions which might have been but were not considered or decided in the first and prior appeal do not become the law of the case. Since Wine v. Woods was decided, this statement of the law has been followed by various Indiana cases--Evansville American Legion Home Ass'n v. White (1967), 141 Ind.App. 574, 230 N.E.2d 623; Egbert v. Egbert et al. (1956), 235 Ind. 405, 132 N.E.2d 910; Alerding v. Allison (1908), 170 Ind. 252, 83 N.E. 1006. In the Egbert case, our Supreme Court criticized past Indiana decisions which did not specifically limit the rule of law in the case to questions actually or expressly decided in a previous appeal and claimed the rule to be as set forth in the Wine case.

Therefore, this court, by failing in the previous appeal to consider the error raised by the motion for directed verdict, did not create an implication that sufficient evidence existed as to Maria's cause of action as a social guest. The previous appeal simply did not decide this question and 'the law of the case' is no barrier to a motion for summary judgment.

II. In our opinion the trial court properly granted summary judgment because Maria was a social guest who took the premises as she found them.

The duty owed by an owner or occupant of land to one coming on the premises depends largely on the relationship between them. Standard Oil Co. of Ind., Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711 (transfer denied). In Indiana a person who enters the premises of another for his own convenience, curiosity, or entertainment is a licensee by permission or a mere licensee, and a social guest falls into this category. East Hill Cemetery Co. of Rushville v. Thompson (1912), 53 Ind.App. 417, 97 N.E. 1036; Olson v. Kushner (1965), 138 Ind.App. 73, 211 N.E.2d 620; Brown v. Kujawa (1968), 142 Ind.App. 310, 234 N.E.2d 509.

This is the law elsewhere. 'If plaintiff is a social guest in defendant's home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited.' Harper and James, The Law of Torts, Vol. 2, § 27.11, p. 1477.

This being so, what duty is owed by the owner or occupant to the social guest? The answer varies from jurisdiction to jurisdiction, but there is unanimity among them in holding that a social guest injured by a defect in the premises may not recover against his host in the absence of evidence establishing something more than negligence in the maintenance of the premises. (See 25 A.L.R.2d 599; 65 C.J.S. Negligence § 63(32). Most courts, in holding a host liable to a social guest, have used such standards as active negligence, ¹ gross negligence, ² and wilful and wanton conduct. ³ This departure from the use of the negligence concept ⁴ has been justified by equating the legal liability of hosts with that of 'homely hospitality, (the court) saying that the host should treat the guest as a member of the family, and the guest, on the other hand, should accept the conditions ordinarily prevalent in his host's home without cavil or complaint.' (See 25 A.L.R.2d 600 and case...