Hamilton v. Union Oil Co.

• Decision Date: 13 May 1959
• Citation: 339 P.2d 440,216 Or. 354
• Parties: Elsiemarie HAMILTON, Appellant, v. UNION OIL COMPANY, a corporation, and Milo Dixon, Respondents.
• Court: Oregon Supreme Court

Page 440

339 P.2d 440

216 Or. 354

Elsiemarie HAMILTON, Appellant, v. UNION OIL COMPANY, a corporation, and Milo Dixon, Respondents.

Supreme Court of Oregon, Department 2.

Argued Dec. 18, 1958.

Decided May 13, 1959.

A. H. Ferris, Eugene, argued the cause for appellant. On the brief were Thompson & Sahlstrom, Eugene.

John Jaqua, Eugene, argued the cause for respondent Union Oil Co. On the brief were Thwing, Jaqua & O'Reilly, Eugene.

Windsor Calkins, Eugene, argued the cause for respondent Milo Dixon. On the brief were Calkins & Calkins, Eugene.

Before PERRY, C. J. ^* , and LUSK, WARNER and SLOAN, JJ.

LUSK, Justice.

Plaintiff has appealed from an adverse judgment in this action to recover damages for personal injuries based on negligence.

The action grows out of a fall sustained by the plaintiff in a gasoline service station in Lowell, Oregon, which was operated by the defendant, Milo Dixon, under a sublease from the defendant, Union Oil Company, a corporation, hereinafter called Union. Generally, the plaintiff charged that her fall was caused by defective premises and negligence in maintaining them. At the conclusion of the plaintiff's case, the court allowed a motion for involuntary non-suit in favor of Union. The case against the defendant Dixon was submitted to the jury, which returned a verdict for that defendant.

On this appeal, the plaintiff contends that Union's motion for an involuntary non-suit was improperly allowed, and that the court erred in its instructions. There is also a question of admissibility of evidence.

On August 24, 1954, between 1:30 and 2:00 o'clock in the afternoon, the plaintiff, a married woman 45 years of age, went to the service station for the purpose, as she testified, of paying a bill of $2.50 owed by her husband for gasoline. The service station consisted of the usual gasoline pumps and a small office, which opened at the rear on what we shall refer to as a garage, in which there was a grease rack used in the servicing of automobiles. The office had a concrete floor, which was about 3 1/2 inches above the floor of the garage. The distance from the office entrance to the step down to the garage floor was between 3 1/2 and 4 feet. The service station faced south. Windows ran all the way across the south and west sides, and there were large folding doors at the west end of the garage which were open at the time of the accident, as was the door of the office.

The plaintiff testified that she was driven to the service station by a friend, who remained in the car while she went in to pay the bill. She was a friend of the defendant Dixon, and had been to the service station before but had never gone inside. She entered by the front door, took about 2 1/2 steps before reaching the step-down, and fell to the garage floor. She thus described the occurrence:

'A. Well, I came to the front of the building and I noticed this step, and I stepped up and I walked in, and I noticed there was a car in front of me, pickup or panel job, and I noticed that there was a man to my right. I didn't see him clearly, but I noticed a man standing to the right. Milo came around from behind the pickup and said, 'Hi! Jerry' or 'Hello! Jerry.' And I said, 'Hi! Milo.' I remember my foot slipping out from under me and striking the ground. It pitched me into the panel job; struck my head.'

After she fell, there was grease on her sleeves, hands and forehead, and on the back of her head.

She testified that the lighting was 'dim', that there were no lights inside the building, and, in answer to the question 'what kind of a day it was outside' the said, 'Well, it wasn't a dark, gray day, but, also, the sun wasn't shining.' The floor of the service station 'appeared to be gray concrete. It all appeared to be the same level.' On cross-examination, the plaintiff testified that it was 'dim' inside the station, but that she had no difficulty seeing.

The defendant Dixon testified that the car to which the plaintiff referred in her testimony was a panel truck which, shortly before, had been driven in by him and parked over the rack. It was not yet raised, but was sitting on the floor. Dixon was behind the truck when he heard the plaintiff say, 'Hello, Milo.' He looked up. He did not see her step off the ledge, but 'saw her stumbling across this space between the step-off and the panel.' The width of the space was about 3 feet.

Mrs. Emily Rose McMurren, who accompanied the plaintiff to the service station and was waiting for her in the car, heard the plaintiff fall and went immediately into the garage. She was asked to describe the general condition of the floor from the doorway entrance of the service station in toward the grease rack and answered that it was all a 'dark color.' With reference to grease and oil on the floor, she testified in answer to a leading question that it was 'greasy and oily,' that there were no big puddles of thick grease, but grime and dirt that is on any kind of garage or filling station floor, 'provided they are not kept clean,' and that she saw grease on the upper level around the tool bench.

The foregoing is a statement of the facts most favorable to the plaintiff, and conflicts in the testimony have been disregarded.

The charges of negligence in the complaint are as follows:

'That at said time and place, the Defendants and each of them, were careless and negligent in the following particulars, to-wit:

'(a) In constructing, operating and maintaining the service station with a floor of different elevations immediately adjacent to the doorway entrance where the coloring or pattern of the floor gave a deceptively level appearance.

'(b) In failing to adequately light the area.

'(c) In allowing oil, grease and other slippery substances to remain on the floor so as to create a slippery condition.

'(d) In failing to construct or maintain a barrier about the recessed floor.

'(e) In failing to mark the floor so as to give adequate notice of the step and of the recessed area.

'(f) In failing to provide a safe place for customers and other persons, including the Plaintiff to walk.

'(g) In failing to warn the Plaintiff of the hazardous conditions and the dangers there existing.'

In submitting the case to the jury the court withdrew specifications (a) and (d).

Plaintiff asserts liability against Union on two grounds: First, as lessor it was liable for injury to the plaintiff caused by a dangerous condition of the premises existing at the time of leasing and continuing until the time of the injury; second, the relationship between Union and Dixon was not merely that of lessor and lessee, but also principal and agent, and, therefore, that Union would be liable to the plaintiff, under the doctrine of respondeat superior, for the negligence of the defendant Dixon.

Plaintiff further says that the judgment in favor of Dixon should be reversed for error and a new trial awarded, in which the question of Union's liability as principal would still have to be determined.

Upon the first proposition, this court has announced its adherence to the rule that an owner of premises leased to another for a purpose which involves the admission of the public, is liable for personal injury sustained by one coming on the premises at the invitation of the lessee, where such injury is caused by a nuisance or defective condition of the premises existing at the time of the letting and continuing up to the time of the injury. Senner v. Danewolf, 139 Or. 93, 293 P. 599, 6 P.2d 240; Staples v. Senders, 164 Or. 244, 263, 96 P.2d 215, 101 P.2d 232. In such cases, the lessor's liability extends only to those parts of the premises which are in fact thrown open to the public, and to those invitees who enter for the purpose for which the place was leased. Prosser on Torts (2d ed.), p. 470.

In the present case, if the plaintiff's testimony is accepted as true, her purpose in going to the service station was to pay a bill, and, therefore, she was a business invitee and within the protection of the rule, unless, as Union contends, the area to which the public was invited to transact business did not include the garage and she was, therefore, a mere licensee at the time that she was injured. In the view we take, it is unnecessary to decide this question, because there is no evidence of the existence of a defective condition of the premises at the time Union sub-let them to the defendant. Nothing out of the ordinary is shown about the construction of this service station. All that has been proven is that when the premises were inadequately lighted, the drop-off from the office floor to the garage floor might constitute a hazard to a person not aware of the conditions. The defendant Union was not responsible for the inadequate lighting. Lewis v. Jake's Famous Crawfish, 148 Or. 340, 346, 36 P.2d 352; Whalen v. Shivek, 326 Mass. 142, 93 N.E.2d 393, 33 A.L.R.2d 74; 32 Am.Jur. 537, Landlord and Tenant, § 669. This is not a case of an 'incipient nuisance,' as in Larson v. Calder's Park Co., 54 Utah 325, 180 P. 599, 4 A.L.R. 731, with annotation at page 746. The governing principle is as stated by Crompton, J., in Gandy v. Jubber, 5 Best & S. 78, 87, quoted with approval in Lewis v. Jake's Famous Crawfish, supra:

'* * * But to bring liability home to the owner, the nuisance must be one which is in its very essence and nature a nuisance at the time of the letting, and not merely something which is capable of being thereafter rendered a nuisance by the tenant. * * *'

Similarly, the court said in Whalen v. Shivek, supra:

'If the premises can be used by the tenant in the manner intended by the landlor, either as shown by the construction of the premises or by the terms of the lease, or by other evidence, without becoming a nuisance, the landlord is not liable for the acts or neglect of the tenant which creates the nuisance. If the tenant creates the nuisance without authority of the landlord, and after he has entered into...