Gasch v. Rounds

• Decision Date: 13 November 1916
• Docket Number: 13400.
• Citation: 160 P. 962,93 Wash. 317
• Court: Washington Supreme Court
• Parties: GASCH et ux. v. ROUNDS et al.

160 P. 962

93 Wash. 317

GASCH et ux. v. ROUNDS et al.

No. 13400.

Supreme Court of Washington

November 13, 1916

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Rudolph Gasch and wife against E. J. Rounds and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded for dismissal.

Preston & Thorgrimson and Peters & Powell, all of Seattle, for appellants.

Wm Brueggerhoff and Peterson & Macbride, all of Seattle, for respondents.

ELLIS J.

Action for personal injuries. Defendants Osgood and wife owned two lots abutting upon the north side of Third avenue in the town of Renton, with a frontage of 65 feet and running back to a depth of 100 feet. Prior to the time here in question there had stood on the front of these lots a frame building occupied by tenants of the Osgoods, among them one Hardy, a plumber, and one Kane, a dealer in electrical fixtures. At the time here in question this building had been moved to the rear of the lots, Kane vacating and moving across the street but Hardy still remaining as a tenant of the Osgoods and conducting his business therein. The Osgoods, through Rounds and wife, doing business as Rounds Construction Company, were erecting a two-story brick building about 65 feet square on the front of the lots. This building was divided into four storerooms of equal width save the westerly one which had 5 feet cut off for a hallway running back to the rear of the building. The walls were up, the roof was on, the studding for the partitions was set, some of the partitions were lathed, and the floors were roughed in. No doors nor windows were hung and the fronts of the storerooms were not in. Some 50 feet back from the front was a wall running east and west cutting off the rear of the storerooms and extending about eight inches into, but not crossing, the passageway along the westerly wall. Immediately off of this passage and immediately back of this rear wall of the westerly storeroom was a cement lined furnace pit 10 feet square [93 Wash. 319] and 8 feet deep. This pit was uncovered, unguarded, and unlighted. About 8 o'clock on the evening of November 21, 1914, one McDonald, a man named Dorsey, and plaintiff, desiring to purchase certain electrical fixtures called 'rosettes' for use in a house being built by McDonald, were directed to seek them from Kane at Hardy's plumbing shop at the rear of the new Osgood store building, where they supposed Kane still conducted his business. They first went north along Wells street, a cross street about one-third of a block west of the new building, to an uninclosed private space leading back toward the frame building occupied by Hardy. They found this space partially blocked with lumber and piles of wood. In the darkness they despaired of finding the way through in safety, and returned to the front of the new store building on Third avenue. They entered; plaintiff, leading, went back through the westerly storeroom to its rear wall, and plaintiff passed around the end of this wall into the passageway. Seeing a light shining through the back of the building he started toward it and fell into the pit. His companions coming up struck matches, and by their light found him unconscious at the bottom of the pit. He sued to recover for his injuries, alleging Osgood's ownership of the premises, his contract with Rounds and wife doing business as Rounds Construction Company to erect the building, Hardy's occupancy of the old building in the rear as Osgood's tenant, Hardy's invitation to the public to pass through the new building to and trade at his store with the knowledge and consent of the defendants, and negligence on the defendants' part in leaving the pit unlighted and unguarded. Defendants by answer admitted Hardy's occupancy of the building as Osgood's tenant, but denied the invitation to the public as follows:

'* * * They deny that the said Frank H. Osgood, or Georgina Osgood, or Susie Rounds gave any consent to the use of the building on the front part of the lot or its passageways, as access to the rear building.' They also set up contributory negligence as an affirmative defense, which was traversed by the reply. The trial resulted in a verdict for $800 in favor of plaintiff and against all the defendants. At appropriate times defendants moved for a nonsuit and for a directed verdict. Both motions were denied. From a judgment entered on the verdict all of the defendants appeal.

Appellants contend that respondent was not an invitee, but a trespasser, or at best a mere licensee, to whom appellants owed no duty except not willfully or wantonly to injure him. Respondent retorts that this issue was not presented by the pleadings, because in their answer appellants merely denied tht either Osgood or his wife or Mrs. Rounds gave any consent to the use of the new building, or its passageways, as assess to the rear building. It is true that these denials are in form a negative pregnant, and, technically construed, amount to an admission that Rounds gave consent, and that Hardy, with the knowledge and consent of all the appellants, held out the invitation. But at the trial it seems to have been assumed by the court and all of the parties that the pleadings were sufficient to present the issue of invitee or licensee. That issue was fully tried; hence we must treat it as an issue here. Gaskill v. Northern Assurance Co., 73 Wash. 668, 132 P. 643.

Though unsatisfactory and in the sharpest conflict, the evidence was sufficient to take to the jury the primary question of an implied invitation to pass through the new building to the old one, to such persons as might desire to visit it for any purpose connected with the business there conducted by the tenant Hardy. On that primary question the verdict is conclusive upon us. But it does not follow that respondent was such a person. Aside from the invitation to the public generally, implied from long acquiescence by the owner of private premises in the general public use of a way across his premises, a phase of the subject resting on an independent basis with which we are not here concerned the rule of implied invitation may be stated as follows: Invitation as distinguished from mere license is implied by low only when the visitor comes for some purpose connected with the business in which the owner or occupant is there engaged or which he permits there to be carried on, and there must be some real or supposed mutuality of interest in the subject to which the visitor's business relates. This rule, which is sustained by almost universal authority, is thus...