Kinsman v. Barton & Co.

• Citation: 251 P. 563,141 Wash. 311
• Decision Date: 17 December 1926
• Docket Number: 19947.
• Court: United States State Supreme Court of Washington
• Parties: KINSMAN v. BARTON & CO.

251 P. 563

141 Wash. 311

KINSMAN v. BARTON & CO.

No. 19947.

Supreme Court of Washington, En Banc.

December 17, 1926

Appeal from Superior Court, King County; Douglas, Judge.

Action by Lucilla J. Kinsman against Barton & Co., a corporation for personal injury. From a judgment dismissing the action plaintiff appeals. Affirmed.

Askren Holcomb, and Main, JJ., dissenting.

James G. Mulroy and Wright, Fronde, Allen & Hilen, all of Seattle, for appellant.

J. Speed Smith, Henry Elliott, Jr., and Clem. J. Whittemore, all of Seattle, for respondent.

BRIDGES, J.

This is a personal injury case. The chief question involved is whether the plaintiff, at the time and place of her injury was an invitee or a licensee. The trial court decided that she was the latter, took the case from the jury, and entered a judgment dismissing the action.

The facts are these: The respondent operates a large meat-packing plant in the city of Seattle. In connection therewith it constructed a garage for the purpose of housing its various trucks. Respondent's employees had formed the habit, with respondent's knowledge, of putting their private automobiles in the garage. There was a sign put up by somebody, probably the respondent, to the effect that 'private cars must be out by 1:30' in the afternoon. In one portion of the garage a small room was partitioned off, which is designated as the office of a Mr. Stowell, one of the respondent's employees. The eastern portion of the garage faces on the street, and the entrance is from that side. Attached to the northwesterly corner of the garage, but separated therefrom, is another room, which has been used as a restaurant. This room may be entered by a door opening onto a street which runs along the northerly side of the garage and the restaurant room, and it may be also entered from the rear by a door leading from the rear or west portion of the garage. Some months before the injury to the plaintiff, a Mrs. Neely made arrangements with the respondent to operate a restaurant in the small room off of the garage; her plan being to supply noon meals to any of the respondent's employees who might choose to come, and also to any one else not employed by respondent. She was not to pay any rental. She was to operate the restaurant on her own account and without the respondent having anything to do with it. She bought and paid for her own provisions and hired and paid her own help. She furnished such food and made such charge therefor as she liked. The respondent had no connection whatever with the restaurant except that it permitted Mrs. Neely to occupy the room without rental. The appellant was employed by Mrs. Neely as a helper, and had been so working for two or three months before her injury. Mrs. Neely and her employees, including the appellant, for some time had been in the habit of going through the garage to Mr. Stowell's office therein and using the telephone. The lavatory was located in one of the main buildings outside of the restaurant room and the garage, and Mrs. Neely and her employees had been in the habit of going thence through the garage. The appellant lived some distance from the plant and in the same locality that Mr. Stowell lived. He had a private automobile, and had been in the habit each morning of calling at the appellant's residence and taking her to her work. If there was room in the garage, he would drive in and leave his car there; otherwise he left it on the outside. One morning, having the appellant with him in his automobile, he drove into the garage and parked the car close to the westerly wall, and when appellant was alighting from the car she stepped into a hole in the floor of the garage and injured herself.

An invitee is one who is either expressly or impliedly invited onto the premises of another in connection with the business carried on by that other. A licensee is one who occupies a position somewhere between that of an invitee and a trespasser. He is a licensee, because he has not been either expressly or impliedly invited on the premises in connection with the business therein carried on; but he is not a trespasser, because he has the permission of the person carrying on the business to enter. Common illustrations of these two relationships exist in the following facts: If one goes into a store with the view of then, or at some other time, doing some business with the store, he is an invitee. But if he goes into the store without any purpose of presently or at any time transacting any business in connection with the store, but merely for his own purposes, as, for illustration, to sell some character of insurance to the employees of the store, and he enters with either the express or implied permission of the owner of the store, he is a licensee.

It is not necessary to cite the authorities in support of the assertion that the owner of the store owes to the invitee the duty of using reasonable care to protect him from injury while therein, but owes no such duty to the licensee. In Gasch v. Rounds, 93 Wash. 317, 160 P. 962, we adopted the rule laid down by the Massachusetts Supreme Judicial Court to the effect that to make one an invitee there must be a mutual interest, quoting the following from Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463:

'It is well settled there that to come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must be at least some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.'

It is our opinion that the appellant was a mere licensee, and not an invitee. The respondent rented to the appellant's employer only the restaurant room. If the tenant or her employees found it convenient to use respondent's telephone or lavatory and to go through the garage for that purpose, it was solely for their own benefit. They were no part of the rented premises. So also with reference to the garage. It was no part of the restaurant. If the appellant had driven her own car therein, and in alighting therefrom had been injured, she would have been merely a licensee, to whom the respondent owed no duty of care. In making such use, there would be no community of interest between the appellant and the respondent. She would not in any manner be engaged in the business of respondent or in anything which would be of interest to it. It is true that respondent permitted private automobiles to be temporarily parked in the garage, but simple permission does not make one an invitee. Permission and community of interest are necessary. But permission is the only element making up the relationship of a licensee, and without it the person would become a trespasser. Under the facts of this case respondent did not invite appellant to use either the telephone or garage. It did nothing more than permit her to use them. Whether she or her employer used them was a matter of indifference to it.

If mutuality of interest is the test, the evidence is insufficient. The appellant contends that this interest is shown by the fact that respondent let her employer have the use of the restaurant without charge or rent; that this fact shows that respondent wanted a nearby place where its employees could obtain their noon meals. But the deduction which appellant draws is nothing more than a possible one. It could be argued with as much plausibility that appellant's employer was not charged any rental because respondent did not consider the room to be of any rental value to it, or because it desired to be of some assistance to appellant's employer. There is an entire lack of affirmative testimony that respondent wanted the restaurant on its premises for its benefit. The mere fact that respondent did not make a charge for the use of the room is too slender a thread upon which to hang a mutuality of interest.

The distinction between an invitee and a licensee may be more clearly shown by referring to a few cases.

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