Hastings v. De Leon

• Decision Date: 31 December 1975
• Docket Number: No. 15497,15497
• Citation: 532 S.W.2d 147
• Parties: Beatrice HASTINGS, Appellant, v. Vicke DE LEON, Appellee.
• Court: Texas Court of Appeals

Page 147

532 S.W.2d 147

Beatrice HASTINGS, Appellant, v. Vicke DE LEON, Appellee.

No. 15497.

Court of Civil Appeals of Texas San Antonio.

Dec. 31, 1975.

Rehearing Denied Jan. 28, 1976.

Donald J. Walheim, Hardberger, Branton & Herrera, Inc., San Antonio, for appellant.

Michael M. Fulton, Beckmann, Stanard & Olson, San Antonio, for appellee.

BARROW, Chief Justice.

Appellant has perfected her appeal from a take-nothing judgment based on an instructed verdict granted at the close of appellant's case in her suit to recover damages for personal injuries sustained in a slip and fall accident at the home of appellee, the daughter of appellant.

Appellant urges by her single point of error that the trial court erred in granting an instructed verdict for three reasons: (1) A fact issue was raised as to whether appellant was an 'invitee' or 'licensee'; (2) We should abolish the common law distinctions between the duty owed to a licensee and that owed to an invitee by the owner or occupier of land; (3) A fact issue of negligence was raised in this case even if appellant is considered to be a licensee.

In Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (Texas Com.App.1938, opinion adopted), the test to be applied to determine the status of the injured person was stated as follows:

In determining this question the general test is whether the injured person, at the time of the injury, had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.

This test was recently considered and adopted by our Court in Mendez v. Knights of Columbus Hall, 431 S.W.2d 29 (Tex.Civ.App.--San Antonio 1968, no writ). See also Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.).

Under the above test, the evidence in this case conclusively establishes that appellant was a licensee at the time of her fall in appellee's home. The testimony of both appellant and appellee is that appellee went by appellant's home after attending a movie. Appellee there borrowed her brother's car to return to her own home to pick up a check she desired to deposit as well as some clothes for her infant daughter. Appellant accompanied appellee on this trip, at appellee's request, and went into appellee's house to look at some new furniture appellee had recently acquired. After about twenty minutes in the house, and as the parties were exiting through the front door, appellant slipped and fell. This evidence clearly establishes that appellant was a 'social guest' in her daughter's home at the time of the fall and is thus classified in law as a 'licensee.' McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.); Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.--Dallas 1971, writ ref'd n.r.e.); Warren v. Medley, 521 S.W.2d 137 (Tex.Civ.App.--Beaumont 1975, no writ); Bass v. Cummings, supra.

Appellant urges by her second proposition that we should abolish the common law distinction between invitees, licensees, and trespassers. This distinction was adopted by our Supreme Court many years ago and was recently recognized again in State v. Tennison, 509 S.W.2d 560 (Tex.1974). This distinction has not been overruled. It is our duty as an intermediate court, in our judicial system, to follow the clear decisions of our Supreme Court. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Buchholz v. Steitz, supra; Warren v. Medley, supra. If the common law distinction is to be abolished by court decision, it should be done by our Supreme Court.

Appellant urges by her third proposition that appellee breached the duty owed appellant, even if she was a licensee. It is well established that if the person injured was on the premises as a licensee, the duty owed her was not to injure her by willful, wanton or gross negligence. An exception to this general rule is when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. State v. Tennison, supra; Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Mendez v....