Foster v. Harding

• Decision Date: 14 February 1967
• Docket Number: No. 41013.,41013.
• Citation: 426 P.2d 355,1967 OK 46
• Parties: Anna Belle FOSTER, Plaintiff in Error, v. John J. HARDING, d/b/a Rose Hill Burial Park and Mausoleum, and John Andrews and William B. Rogers, Co-Administrators of the Estate of John J. Harding, Successor Trustees d/b/a Rose Hill Burial Park and Mausoleum, Defendants in Error.
• Court: Oklahoma Supreme Court

426 P.2d 355

1967 OK 46

Anna Belle FOSTER, Plaintiff in Error, v. John J. HARDING, d/b/a Rose Hill Burial Park and Mausoleum, and John Andrews and William B. Rogers, Co-Administrators of the Estate of John J. Harding, Successor Trustees d/b/a Rose Hill Burial Park and Mausoleum, Defendants in Error.

No. 41013.

Supreme Court of Oklahoma.

February 14, 1967.

Rehearing Denied March 21, 1967.

Appeal from District Court of Tulsa County; Leslie Webb, Assigned Judge.

Suit for damages for personal injuries. The trial court sustained a demurrer to plaintiff's evidence and dismissed the action. Reversed and remanded with directions.

Farmer, Woolsey, Flippo & Bailey, by Robert J. Woolsey, Tulsa, for plaintiff in error.

Rucker, Tabor, Shepherd & Palmer, Robert L. Shepherd, O.H. "Pat" O'Neal, Donald G. Hopkins, Tulsa, for defendants in error.

BERRY, Justice.

Plaintiff in error brought this action to recover damages for personal injuries allegedly sustained as the result of a fall upon the stairway of a mausoleum owned and operated by defendant in error. The trial court sustained defendant's demurrer at the close of plaintiff's evidence, and entered judgment dismissing the action. This appeal involves the propriety of the trial court's order and judgment.

Plaintiff's petition charged defendant owed a duty to the invited public to maintain the premises in a safe condition by providing adequate lighting and handrails upon the stairway; that defendant violated this duty in that, although there were adequate lights, the defendant's agent failed to turn the lights on, or direct plaintiff's attention thereto when she undertook to use the stairs. Further negligence was charged in defendant's failure to comply with certain of the Revised Ordinances of the City of Tulsa specifically pled in the petition.

Defendant answered by general denial, coupled with the special pleas of unavoidable accident and contributory negligence.

Plaintiff's evidence established that she went to the cemetery and mausoleum, accompanied by a daughter-in-law and that person's small child, to pay their respects to relatives there interred. The mausoleum contained a small chapel in which funeral services were held. While in the mausoleum they inquired as to location of a particular crypt. An employee advised them to ask directions at the office, and showed them the stairs leading down to the basement, where the office was located. The evidence showed this stairway consisted of seventeen or eighteen relatively steep steps, constructed of smooth, white marble. The stair walls also were of smooth, marble construction. It was undisputed that there were no handrails on either side of the stairs. Also it was undisputed that, although there were lights over the stairway, operated by a switch at the head of the stairs, these lights were not on at the time of accident. Plaintiff, preceded by her companions, started down the stairs and when nearly to the bottom mistook the last step for the floor and fell, sustaining injuries for which she sought recovery.

Plaintiff testified she proceeded down the stairway with caution because it was dark. Because there was no handrail, she kept her hand on the wall, but this was insufficient to prevent her falling. The steps were white marble and the walls were white and she was blinded by the white marble steps, and thought she was at the bottom of the stairs, but missed the last step thinking she was at the bottom of the stairs because of all the white. Defendant's employee came down the stairs, after plaintiff fell, and stated that she could have turned the lights on.

The parties stipulated that the applicable and effective ordinances of the City of Tulsa provided:

"Buildings of Class 7. (Church, Place of Worship).

"Section 339. Class 7 Defined. In Class 7 shall be included every building used as a church or place of worship.

"Section 357. Lighting Service Requirement. * * * Provisions shall be made to properly light every portion of a building of Class 7 and every outlet therefrom leading to the outside of the building, and all open courts, passageways, and emergency exits."

Also in effect at the time were ordinances concerning Class 2 buildings "Office Building, Etc.," providing:

"Section 295. Stairs. Other requirements. * * * (j) Stairways which are less than three feet three inches wide shall have not less than one handrail and stairways which are more than three feet three inches wide shall have not less than two handrails."

The trial court sustained the demurrer to plaintiff's evidence, for the stated reason that he was unable to find existence of primary negligence, under the rule in Pruitt v. Timme et al., Okl., 349 P.2d 4. The trial court's action resulted in this appeal.

In reviewing the trial court's action we are required to consider the facts, circumstances, and reasonable inferences fairly deducible therefrom, in the light most favorable to plaintiff, while treating as withdrawn any evidence favorable to the demurrant. Upon such consideration, unless it can be said that all reasonable men would agree the defendant was free from negligence, or that defendant's negligence was not the proximate cause of injury, the case should be submitted to the jury, and it is reversible error to sustain a demurrer to the evidence. Lawson v. Lee Eller Ford, Inc., Okl., 375 P.2d 913; Putt v. Edwards Equip. Co., Okl., 413 P.2d 559.

First to be considered is the question as to applicability of the ordinances involved. The settled rule is that violation of a city ordinance constitutes negligence per se, where the other elements of actionable negligence are present. Harbour-Longmire Bldg. Co. v. Carson, 201 Okl. 580, 208 P.2d 173. The question then simply is whether a mausoleum which contains a chapel, and a business office in the basement, is within the classification mentioned in the ordinances?

We recognize that the ordinances involved are vague and indefinite for failure to define buildings included in general classes. Without discussion from this standpoint, we are of the opinion the building involved does not come within the classification attempted to be made by the ordinances. Although the evidence showed the mausoleum contained a chapel where funeral services were held, nothing indicated such chapel was utilized regularly for worship services.

The term "church" is variously defined. In the primary sense as expressive of a place, it is defined as an edifice or place consecrated to the honor of God, or where persons regularly assemble for worship. See 14 C.J.S., Church, p. 1116. In Scott County v. Roman Catholic Archbishop, etc., 83 Or. 97, 163 P. 88, a church was defined as a building intended primarily for purposes connected with a faith, or for propagating a particular form of belief. Also see Stubbs v. Texas Liquor Control Board (Tex.Civ.App.) 166 S.W.2d 178.

In Newark Athletic Club v. Board of Adjustment, etc., 7 N.J. Misc. 55, 144 A. 167, 168, the court said:

"The reports and digests are peculiarly barren of judicial definitions of church edifices. In 11 C.J. 763, it is said a church edifice is `a building in which people assemble for the worship of God and for the administration of such offices and services as pertain to that worship.' The same definition is to be found in 7 Cyc. 130. In 1 Bouvier's Law Dictionary, 486, a church is defined as: `A society of persons who profess the Christian religion. Den ex dem. Day v. Bolton 12 N.J.Law 206-214; Stebbins v. Jennings, 10 Pick. (Mass.) 172, 193; German Reformed Church v. Commonwealth, 3 Pa. 282; St. Johns Church v. Hanns, 31 Pa. 9. The place where such persons regularly assemble for worship. Blair v. Odin, 3 Tex. 288.' In 37 Cyc. 943, the phrase, `place of public worship,' in the statutes exempting church property, is construed as meaning a house or building which is actually and exclusively used for the holding of religious services, or one which is principally so used, where any other uses to which it may be put are either related to the religious or charitable work of the congregation, or else are only incidental or occasional and not a source of revenue. And therein it is further said: `III. It is well settled that a rectory or parsonage built and owned by a religious society is not exempt from taxation as a "place of public worship" unless such rectory or parsonage is used for no other purpose than as a residence for the priest or minister, who occupies it rent free, and although it is situate on the same lot as the church nor is it exempt because of the fact that occasional religious services are held there or that a room or a part of it is set aside as a chapel, or that it is also used for meetings of the vestry and associations connected with the church or that other acts connected with the work of the church such as the hearing of confessions, performing of marriage ceremonies, etc., are sometimes performed there' — citing, amongst other cases from other jurisdictions, State v. Axtell, 41 N.J.Law 117; State v. Krollman, 38 N.J.Law 323; State v. Lyon, 32 N.J.Law 360."

The term "worship" has been held to include performance of external acts and the observance of those rites and ceremonies engaged in by men with the professed aim of honoring God. People ex rel. Ring v. Board of Ed. etc., 245 Ill. 334, 92 N.E. 251. And, it is suggested that a funeral service under such definition would render the mausoleum subject to the ordinances involved. It is apparent, however, the mausoleum is not intended primarily for purposes connected with propagating a particular form of belief. Rather, it is a place devoted primarily to the formal interment of deceased persons with appropriate ceremonies. Should a mausoleum be defined as a place of worship, then the private chapel in a mortuary, or a room in a home set apart for daily devotional services on appropriate occasions, necessarily would require such building or home to be considered as a place of...