Huselton v. Underhill

Citation213 Cal.App.2d 370,28 Cal.Rptr. 822
PartiesElsie HUSELTON, Plaintiff and Appellant, v. Amon UNDERHILL and Vera Underhill, et al., Defendants and Respondents. Civ. 7035.
Decision Date26 February 1963
CourtCalifornia Court of Appeals

Vinnedge, Lance & Glenn, Ontario, for plaintiff and appellant.

Wilson & Wilson, by Caywood J. Borror, San Bernardino, for defendants and respondents.

MONROE, Justice pro tem.

The plaintiff and appellant, Elsie Huselton, brought this action to recover damages for personal injuries suffered by her when she fell on May 21, 1959, upon premises controlled by the defendants and respondents. The action was tried before a jury; a notion for a directed verdict was denied, and the jury brought in a verdict in favor of the plaintiff. The defendants then moved for a judgment notwithstanding the verdict, or in the alternative for a new trial, in accordance with the provisions of Section 629, Code Civ.Proc. The court granted the motion for directed verdict and also granted the motion for new trial; the latter order, however, being upon condition that it would not be effective unless the judgment notwithstanding the verdict was vacated. The plaintiff appeals.

The facts involved are that the respondents held title as trustees to property in the City of Ontario, upon which was located the 'Country Church.' Mr. Underhill acted as the minister of that church. No question is raised as to the status of the Underhills as being the parties responsible for the premises in question.

The church building faces Virginia Street in Ontario and between the sidewalk of Virginia Street and the front of the church is a lawn intersected by sidewalk. To the north of the church building is a recreation hall and to the north of that hall is a residence building which Mrs. Huselton and her husband occupied. Between the sidewalk of Virginia Street and the front of the recreation hall and the house is a paved area approximately 80 feet wide which was used as a parking lot for the use of members of the congregation when attending church. The Huseltons were accustomed to parking their automobile in the northerly portion of the parking lot. At the south end of the parking lot two telephone poles had been partially imbedded in the pavement to keep the parked automobiles from running onto the church lawn. Mr. Huselton acted as caretaker and handyman around the church, in return for which he was given the use of the residence property. Such work as he did was at odd times as he ws also employed. The Huseltons owned a residence property to the south of the church, which property was rented. They had occupied the residence to the north for approximately five years.

Shortly before the day of the accident, Mr. Underhill had discussed with Mr. Huselton plans for an addition to the church structure. The additional building would be extended a few feet into the rear southerly portion of the parking lot. In anticipation of the work, Mr. Huselton had removed two trees from the church lawn and transplanted them to the home of his daughter. On the afternoon of May 21, about 4:00 p. m., he undertook to remove the rear telephone pole from the paving as it would be in the way of the proposed construction. He succeeded in prying it out with a crowbar and permitted it to roll a few feet to the north. As the poles were imbedded in the paving the exposed portion of them was painted white, but it appears that when the pole was removed and rolled over, the unpainted side remained up. Mr. Huselton stated that he did not tell anyone that the had removed the pole and apparently neither Mrs. Huselton nor Mr. Underhill knew that it had been done.

On the evening of May 21, the appellant had been away from her home, babysitting for one of her customers. When she returned to the neighborhood, about ten p. m., she discovered that the house located to the south of the church and owned by the Huseltons was on fire. Fire equipment was present and a crowd estimated at several hundred people were in the area. The fire was serious and resulted in the loss of several lives. The automobile in which Mrs. Huselton was riding approached as near as possible to the scene of the fire and she proceeded on foot. She went into the yard of the church and stood on the lawn among the crowd that was gathered there. She testified that she saw Mr. Underhill in the crowd but did not speak to him; it was his testimony that he did not observe her. While she was in the crowd her husband approached her and they conversed for several minutes. He left her standing in the church yard. Both Mr. Huselton and Mrs. Huselton so testified. Nothing was said by Mrs. Huselton as to what she intended to do.

After her husband had left, Mrs. Huselton decided to go to her house and call her daughter by telephone. Instead of going by the sidewalk to the front of the parking lot, she cut across the rear of the parking lot, which was not lighted. She fell over the pole which her husband had removed, and received the injuries complained of. She explained that she did not go by way of the sidewalk because several automobiles were parked on the sidewalk area. There was no church activity that night and hence no light in the parking area.

Mr. Huselton testified on behalf of his wife. He stated that he had not posted any warning of any kind concerning the pole which he had moved and that he told no one of it and that he had given his wife no warning of it. He explained that 'no one was supposed to go through that part of the parking lot.'

It is conceded that the legal status of Mrs. Huselton on the premises was that of a licensee. The basis of her claim was that her husband was the agent of the respondent and that by reson of his negligence she received injuries for which the Underhills should be held liable.

The trial court held that the motion for directed verdict should have been granted and therefore granted judgment notwithstanding the verdict. The court based its ruling upon the decision in Bylling v. Edwards, 193 Cal.App.2d 736, 742, 746, 14 Cal.Rptr. 760, 764. This decision was rendered by the District Court of Appeal, Second District, in July 1961, and petition for hearing was denied by the Supreme Court. That decision appears to be determinative of all the...

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6 cases
  • Ross v. DeMond
    • United States
    • California Court of Appeals Court of Appeals
    • January 20, 1966
    ...which liability can be predicated, the motion and the judgment predicated thereon were properly granted. (Huselton v. Underhill (1963), 213 Cal.App.2d 370, 376, 28 Cal.Rptr. 822; Bylling v. Edwards (1961) 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Obrien v. Fong Wan (1960) 185 Cal.App.2d 11......
  • Rowland v. Christian
    • United States
    • California Supreme Court
    • August 8, 1968
    ...409, 412, 59 Cal.Rptr. 342; Hansen v. Richey, supra, 237 Cal.App.2d 475, 489--480, 46 Cal.Rptr. 909; Huselton v. Underhill, 213 Cal.App.2d 370, 374--376, 28 Cal.Rptr. 822; Bylling v. Edwards, 193 Cal.App.2d 736, 746--747, 14 Cal.Rptr. 760; Yazzolino v. Jones, 153 Cal.App.2d 626, 636, 315 P.......
  • Rowland v. Christian
    • United States
    • California Court of Appeals Court of Appeals
    • October 27, 1967
    ...condition. (Hansen v.Richey, supra, 237 Cal.App.2d 475 at p. 478, 46 Cal.Rptr. 909 at p. 911; Huselton v. Underhill (1963) 213 Cal.App.2d 370 at p. 374, 28 Cal.Rptr. 822 at p. 824; Bylling v. Edwards, supra, 193 Cal.App.2d 736 at pp. 742-743, 14 Cal.Rptr. 760 at p. 764.) Defendant's showing......
  • Hansen v. Richey
    • United States
    • California Court of Appeals Court of Appeals
    • October 13, 1965
    ...Joseph Cooper was purely a social visitor, or in technical parlance, a licensee, in the Richeys' home. (Huselton v. Underhill, 213 Cal.App.2d 370, 373-374, 28 Cal.Rptr. 822; Bylling v. Edwards, 193 Cal.App.2d 736, 742, 14 Cal.Rptr. 760.) According to established California case law, a licen......
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