Gow v. Multnomah Hotel

• Decision Date: 28 November 1950
• Citation: 191 Or. 45,224 P.2d 552
• Parties: GOW v. MULTNOMAH HOTEL, Inc., et al.
• Court: Oregon Supreme Court

Page 552

224 P.2d 552

191 Or. 45

GOW v. MULTNOMAH HOTEL, Inc., et al.

Supreme Court of Oregon.

Nov. 28, 1950.

James K. Buell, of Portland, argued the cause for appellant. On the brief were Harold A. Seering, of Seattle, Wash., and Griffith, Peck, Phillips & Coughlin, of Portland.

James Arthur Powers, of Portland, argued the cause for respondents. With him on the brief were Veazie, Powers & Veazie and Claude M. Johns, Jr., all of Portland.

Before BRAND, Acting Chief Justice, and BAILEY, HAY, LATOURETTE and WARNER, JJ.

BRAND, Acting Chief Justice.

Plaintiff, a guest, sued the defendant hotel companies for damages when a counter stool on which he was sitting broke, casting him to the floor. There was a verdict for the plaintiff. Upon motion of the defendants, however, judgment was entered for the defendants, notwithstanding the verdict. The plaintiff appeals.

The complaint alleges that plaintiff was seated at the invitation of defendants, upon a stool at the counter, which was negligently maintained in a defective and hazardous condition, and that as the plaintiff was rising from said stool, it broke and precipitated plaintiff to the floor. The complaint specifies the particulars of the alleged negligence, i. e., that in the exercise of reasonable diligence, defendants should have known that the stool was breaking loose from its fastenings; that the condition was not apparent to persons about to sit upon it; that there was a failure to provide adequate fastenings; that defendants represented that the stool was safe to sit upon; and that they failed to provide a safe place for plaintiff. Then follows the allegation of damage. Defendants filed a joint answer denying negligence and alleging contributory negligence which was denied in the reply.

Defendants cite: Lee v. Meier & Frank Co., 166 Or. 600, 114 P.2d 136; Starberg v. Olbekson, 169 Or. 369, 129 P.2d 62; Doherty v. Arcade Hotel, 170 Or. 374, 134 P.2d 118, 121. From defendants' brief we quote the following: '* * * Appellant cites these same cases in his brief, indicating that the extent of the duty owed is not in question and is not an issue in this appeal. The question in this regard then is, solely, whether or not there is any competent evidence indicating that Respondents did not discharge the duty of reasonable care. * * *'

From the authorities cited by both parties, we learn the familiar rule concerning the duty of the defendants. They were not insurers, but did have a duty to exercise reasonable care, 'such care in the maintenance of its * * * fixtures that the plaintiff could use them in the ordinary way without danger.' Doherty v. Arcade Hotel, supra. Stated differently:

'The principle which is applicable to the inquiry is thus stated by § 307, Restatement of the Law, Negligence:

"It is negligence to use an instrumentality, whether a human being or thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others." Doherty v. Arcade Hotel, supra.

Applying the 'knows or should know' portion of the rule, it has been held that opportunity by the exercise of reasonable diligence to acquire knowledge of a peril is equivalent to a knowledge of the peril. Starberg v. Olbekson, supra. This rule is the basis on which rests the duty of reasonable diligence in inspection. Restatement, Torts, Vol. 2, § 343, and comments; and section 365. The duty of reasonable care to keep the premises safe applies, not only to apparent dangers, but also to hidden or lurking dangers. Starberg v. Olbekson, supra.

In determining the issue presented by the motions for nonsuit and directed verdict, we will first consider the applicability of the doctrine of res ipsa loquitur. Defendants contend that it is 'incongruous to plead specific acts on one hand and on the other hand rely on this doctrine.' In Doherty v. Arcade Hotel, supra, the plaintiff pleaded specific acts of negligence and also relied on res ipsa loquitur. The court considered plaintiff's contention that the doctrine applied and rejected it, but not because specific negligence had been pleaded.

In Suko v. Northwestern Ice & Cold Storage Co., 166 Or. 557, 113 P.2d 209, 213, this court ruled directly on the point. We quote: 'The fact that the plaintiff in his complaint charged the defendant with specific acts of negligence does not deprive him of the benefit of the doctrine of res ipsa loquitur, so far as concerns the acts alleged * * *.' Citing cases.

In Applegate v. Portland Gas & Coke Co., 142 Or. 66, 18 P.2d 211, 212, plaintiff alleged specific acts of negligence. This court said: 'Since plaintiff was in control of the premises upon which the meter in question was located, and the plaintiff has undertaken specifically to point out the cause of the leakage, the doctrine of res ipsa loquitur has no application * * *.'

If this statement is to be taken as meaning that res ipsa loquitur is not available where specific negligence has been alleged, then the case is to that extent overruled by the Suko case, supra, and by Carlson v. Wheeler-Hallock Co., 171 Or. 349, 137 P.2d 1001. See also Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 214, et seq. In the case at bar negligence was alleged both generally and specifically.

In their brief the defendants describe the manner in which the stool was affixed to the floor as follows: '* * * The floor in the Coffee Shop is concrete and a hole was drilled into the concrete into which hole an expansion shield was imbedded. The stool base is one piece with a flat bottom which rests flush on the floor with a tubular standard about 19 inches high, and this was placed directly over the hole in the concrete and the expansion shield. Then a lag bolt, of standard size, was inserted into the shaft of the stool base down through a hole at the bottom, the hole being cast into the base itself; thence, into the expansion shield by means of a special long socket-wrench which was inserted down through the base, fitted over the head of the lag bolt, and twisted by means of a crescent wrench affixed to the end protruding out of the base. As the lag bolt was tightened with this wrench the shield expanded into the concrete, and the head of the lag bolt pulled the stool base onto the concrete holding it tight in position. * * *'

The plaintiff testified that the defendants' hostess showed him the seat in the restaurant; that he noticed nothing unusual about it; sat down and ate his luncheon. He testified further: 'A. * * * I had my hand on the counter to try and turn the swivel seat around so I could get out sideways without disturbing people on each side of me, and I got part way around, I guess, and the next thing I knew I was laying on the floor. The seat had broken loose and I went right over with the stool and the chair. * * *'

There is no evidence to the contrary.

Although there have been some modern accretions, the essence of the doctrine known as res ipsa loquitur has never been better stated than in its first formulation in 1865. The court said: 'There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' 3 H. & C. 596, 159 Eng.Rep. 665.

The modern statement of the doctrine frequently follows the formulation by Wigmore: 'What the final accepted shape of the rule will be can hardly be predicted. But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. * * *' Wigmore on Evidence, Vol. 9, 3d Ed., § 2509, p. 380.

The learned author refers to the rule as a 'presumption', meaning, undoubtedly, a presumption of law. 9 Wigmore, 3d Ed., § 2491. But it must be remembered that the Wigmore theory as to the nature and effect of presumptions has been rejected by this court in Wyckoff v. Mutual Life Ins. Co., 173 Or. 592, 147 P.2d 227, where the question was exhaustively considered in the light of Oregon statutes concerning inferences and presumptions. In saying that res ipsa loquitur raises a presumption, Wigmore was not referring to presumptions as defined by Oregon statute and construed in the Wyckoff case. In any event, as indicated in Ritchie v. Thomas, Or., 224 P.2d 543, handed down of even date herewith, this court is committed to the proposition that res ipsa loquitur simply specifies certain facts or circumstances which, when found in combination, raise an inference of negligence. As said in Dunning v. Northwestern Electric Co., 186 Or. 379, 199 P.2d 648, 206 P.2d 1177, 1190: '* * * That rule [res ipsa loquitur] is merely a process of common sense reasoning. It assists in drawing logical inferences from circumstantial evidence which has been presented in negligence cases. * * * There is nothing artificial about the rule. It favors neither party with any makeweights--as, for instance, presumptions--that were coined in the mints of lawmakers. It gives to circumstantial evidence in negligence cases its real value, nothing more and nothing less. * * *'

The rule, when applicable, gives rise to an inference of negligence permissible but not mandatory, which carries the plaintiff's case past a nonsuit.

The defendants cite Dunning v. Northwestern Electric Co., supra, wherein the Wigmore rule was succinctly summarized as follows: '* * * Res ipsa loquitur deems as...