Kalinowski v. Young Women's Christian Ass'n

• Decision Date: 31 March 1943
• Docket Number: 28851.
• Citation: Kalinowski v. Young Women's Christian Ass'n, 135 P.2d 852, 17 Wn.2d 380 (Wash. 1943)
• Court: Washington Supreme Court
• Parties: KALINOWSKI et ux. v. YOUNG WOMEN'S CHRISTIAN ASS'N.

135 P.2d 852

17 Wn.2d 380

KALINOWSKI et ux. v. YOUNG WOMEN'S CHRISTIAN ASS'N.

No. 28851.

Supreme Court of Washington

March 31, 1943

Department 2.

Action by Weldon Kalinowski and Ernestine Kalinowski, husband and wife, against the Young Women's Christian Association, a corporation, for personal injuries sustained by the wife. Verdict for defendant. From an order granting a new trial defendant appeals.

Reversed with instructions, to dismiss the action.

Appeal from Superior Court, Spokane County; Louis F. Bunge, judge.

Witherspoon, Witherspoon & Kelley, of Spokane, for appellant.

Edward M. Connelly, and George H. Holt, both of Spokane, for respondents.

JEFFERS Justice.

This is an appeal by defendant, Young Women's Christian Association, a corporation, hereinafter referred to as Y. W C. A., from an order granting the motion for new trial of plaintiffs, Weldon Kalinowski and Ernestine Kalinowski, after a jury verdict in favor of defendant. The order was granted on the following ground: 'It is hereby ordered that said motion for new trial be and the same is hereby granted specifically for the reason that neither the issue of invitee or licensee was a proper one to be submitted to the jury in this case.'

Ernestine Kalinowski and her husband brought this action against the Y. W. C. A., to recover for an alleged injury sustained by Mrs. Kalinowski, who will hereafter be referred to as if she were the sole plaintiff. The amended complaint in substance alleged that plaintiff was invited by the Y. W. C. A. secretary of the Girl Reserves, an organization organized and sponsored by the defendant, to be advisor of a Girl Reserves unit of John Rogers high school; that the unit gave a dance on April 18, 1941, and plaintiff reported to defendant and assumed charge of the dance, which was held in defendant's building. It is further alleged that defendant's employees had carelessly and negligently placed dance wax upon the floor in excessive amounts, with the result that a quantity of the wax accumulated upon the soles and heels of plaintiff's shoes as she walked upon the dance floor; that defendant knew that the excessive quantity of wax which had been placed upon the floor would accumulate upon the shoes of persons using the dance floor, and accordingly had placed a short rubber mat on the floor of the main lobby leading from the entrance to the gymnasium.

It is alleged that it became necessary for plaintiff to leave the dance floor and pass through the main lobby; that in doing so, she stepped upon the rubber mat, then off the mat onto the linoleum which covered the floor of the lobby; that because of the accumulation of wax on her shoes, when she stepped onto the linoleum her feet slid in opposite directions, and in an endeavor to recover her balance and avoid falling, she sprained her back severely in the sacro-iliac joint and in the region of the sacrum.

In its answer, defendant, in addition to denying that plaintiff suffered any injury due to the negligence of defendant, alleged contributory negligence on the part of plaintiff, and also that defendant was a charitable corporation and did not charge for or receive any money from the dance.

The evidence in most respects is not in conflict. The Girl Reserves is an organization sponsored by the Y. W. C. A., to aid in the development of adolescent girls, or high school girls from twelve to eighteen years of age. By becoming a member of the Girl Reserves, a girl becomes a junior member of the Y. W. C. A.

Plaintiff was a teacher at John Rogers high school, and had become advisor for a Girl Reserves unit of that school, in October, 1940, at the request of Mrs. Taggart, the paid Girl Reserves secretary of the Y. W. C. A. Plaintiff received no salary for the services rendered by her to the Reserves, and her duties consisted largely of meeting with the girls once a week at the school and assisting them in formulating and carrying out their program. Once a month the officers of the various Girl Reserves units of the city met with Mrs. Taggart at the Y. W. C. A. building, and at one of these meetings the officers of the John Rogers high school group expressed a desire to have a dance.

Plans for a dance were begun, and the matter was discussed between plaintiff and Mrs. Taggart, especially the matter of a date on which to hold the dance. Mrs. Taggart finally decided on April 18, 1941. While Mrs. Taggart did not state that she expressly invited plaintiff to attend this dance, she did testify that it was unnecessary so to do, as all advisors knew that they were expected to help with the programs of their respective groups. She further testified that plaintiff had agreed to assist in decorating the gymnasium for the dance. Plaintiff testified that Mrs. Taggart asked her to come early that night, as she (Mrs. Taggart) might be delayed.

The dance, while originally planned by the Girl Reserves of John Rogers high school, was attended by other high school and junior high school students. Tickets to the dance were sold for 15 cents per person, two for 25 cents. Defendant made no charge for the use of the gymnasium for the dance, and the money collected for admission was used to supply nickels for the nickelodeon, which furnished the music, and to pay the janitor, none of the money going to defendant.

The gymnasium had a hardwood floor, which was 60 feet wide and 74 feet long. Before the dance, the floor had been prepared by an employee of defendant, by the application of a mixture of nine pounds of corn meal and one cup of 'Misto,' which is a preparation of the Acme Chemical Company. One third of this mixture was placed on the floor prior to the dance. There was only one entrance to the gymnasium, a door which opened onto the main lobby. At this door, a rubber mat, four feet wide by seven feet four inches long had been placed, for the purpose, as testified by Mrs. Foster, maintenance secretary of defendant, of preventing the tracking of the corn meal mixture throughout the building. In the lobby, on the left side of the door as one walked toward the gymnasium, was a small table used by persons collecting tickets. The floor of the lobby, coming from the gymnasium, was covered with linoleum.

On the evening of the dance, plaintiff wore shoes with heels about two inches high, and during the evening she danced several times with the students. She testified that during the evening she was aware of an accumulation on the soles and heels of her shoes of some substance which she thought was wax, but that she did not examine her shoes that night, nor until the next morning, when she discovered that the heels of her shoes were covered with a substance which looked like wax.

Plaintiff left the gymnasium several times during the evening, crossed the rubber mat, and turned to the left in the lobby, to the cashier's desk to get change for the nickelodeon. There is no allegation or claim that the mat or the linoleum was defective, or that plaintiff tripped on the mat or the linoleum. On one occasion, as plaintiff left the dance hall, just as she stepped from the rubber mat onto the linoleum her foot or feet slipped and she did what she described as the 'splits.' She did not fall clear to the floor, nor did her hands touch the floor, but in recovering her balance, she received the injury for which damages are claimed.

Plaintiff further testified that she had danced a great deal, and knew that wax was usually put on dance floors to make them slippery. We call attention to the cross-examination of plaintiff:

'Q. Now, you recall, do you not, while you were dancing there you noticed that some substance had accumulated on the soles and heels of your shoes, do you not? A. Why, yes, you always know there is wax on your shoes when you are dancing.

'Q. So, you were aware of that substance that you thought was wax on the sole and heel of your shoe while you were dancing there that evening, were you not? A. Well, I don't believe that one can dance on a waxed floor and not get wax on your shoes.

'Q. I am asking if you weren't aware you did have it on your shoes? A. Why, yes, I would expect it to be there. * * *

'Q. There isn't any question, then, now, that you knew there was a substance on your shoes at the night of the dance? A. Well, I knew there was wax on my shoes, yes.'

One of the witnesses called by plaintiff was LeNoir Simenton, a student at John Rogers high school, who testified to seeing plaintiff slip, and to the slippery condition of the floor at or near the place where plaintiff slipped. She further testified that she had attended a dance in the gymnasium in February, 1941, and on that occasion she had slipped at a point near where plaintiff had slipped; that she had seen another girl slip there; and that on the evening of April 18th, after plaintiff's accident, the witness again slipped.

Defendant called, among other witnesses, L. H. Moore, salesman for Acme Chemical Company, who testified that the preparation used by the Y. W. C. A. on the floor was used by one fourth of the high schools in the state, as well as by Washington state college and the University of Idaho; that Misto takes a portion of the wear off the floor, controls dust, and aids in cleaning; that Misto does not make the floor slippery, that condition being caused by the corn meal; and that the purpose of Misto is to overcome the dust which is caused by the corn meal, and the grating noise the corn meal makes, and also to aid in removing it.

Defendant also called Alfred W. Perry, who for many years has had charge of preparing the dance floor at Washington state college for dances, and who testified that for the past three years they had used corn meal mixed with Misto on their dance floor. This witness...