Leveque v. Leveque

• Decision Date: 26 May 1972
• Docket Number: Docket No. 12385,No. 2,2
• Citation: 199 N.W.2d 675,41 Mich.App. 127
• Parties: Alberta N. LEVEQUE, Plaintiff-Appellant, v. Joseph C. LEVEQUE and Sandra Leveque, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 675

199 N.W.2d 675

41 Mich.App. 127

Alberta N. LEVEQUE, Plaintiff-Appellant, v. Joseph C. LEVEQUE and Sandra Leveque, Defendants-Appellees.

Docket No. 12385.

Court of Appeals of Michigan, Division No. 2.

May 26, 1972.

Released for Publication Aug. 18, 1972.

Morton Leitson, Leitson, Dean, Dean, Segar & Hart, Flint, for plaintiff-appellant.

Richard L. Lehman, Detroit, for defendants-appellees.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

J. H. GILLIS, Judge.

Plaintiff appeals from an entry of summary judgment of no cause of action.

Stipulated facts are as follows: Plaintiff's husband and defendant Joseph Leveque are brothers. Defendants reside in Flint, Michigan, and own their home as tenants by the entireties. On April 20, 1970, defendants were away from home visiting Joseph Leveque's mother and grandmother in Carlton, Michigan. Planning on returning early that same evening, they hired a babysitter to stay with their children in the interim.

Pursuant to prior arrangements, plaintiff was to pick up the mother and grandmother in Carlton the following day and drive them to Traverse City, Michigan. Plaintiff and her husband knew defendants were in Carlton and called there suggesting that time could be saved if defendants would bring the mother and grandmother to plaintiff's home when defendants returned to Flint that evening. Thus plaintiff would save time on the trip to Traverse City the following day. This was agreed upon.

During the conversation with the defendants and because the defendants were going to arrive back in Flint later than originally planned, Joseph Leveque requested that plaintiff go to his home in Flint, take the babysitter home and keep his children at plaintiff's house until such time as defendants returned to Flint. Defendants would then pick up the children when they dropped off the mother and the grandmother. Plaintiff agreed to do this.

Plaintiff, thereupon, in accordance with said agreement, went to defendants' house. While in the process of carrying defendants' infant child down the front stairs of defendants' porch, plaintiff suffered a fall due to a defective step.

It was stipulated that the condition of the porch steps was such that if plaintiff was a licensee, there would be no liability while if she was an invitee, there would be liability. Based on the foregoing facts, the trial court held that plaintiff was a licensee as a matter of law, and, hence, proceeded to grant defendants' motion for summary judgment. The sole question presented on appeal is whether the trial court erred in holding plaintiff's legal status to be that of a licensee as a matter of law, and, thereby, granting defendants' motion for summary judgment.

The Courts of this State have held that the status of an invitee is tested not only by the theory of 'economic benefit,' but also upon the concept of 'invitation.' Preston v. Sleziak, 383 Mich. 442, 449--450, 175 N.W.2d 759 (1970); Genesee Merchants Bank and Trust Co. v. Payne, 6 Mich.App. 204, 208, 148 N.W.2d 503 (1967). Likewise, the weight of authority clearly holds that a social guest, though specifically invited, stands in the legal relationship to his host of a licensee. Preston, supra, p. 453; Miller v. Miller, 373 Mich. 519, 129 N.W.2d 885 (1964); 25 A.L.R.2d 598, 600; 38 Am.Jur., Negligence, Social Guest, § 117, p. 778. However, the specific issue involved in this appeal in light of the type of factual situation as presently confronts us has never before been decided in this State.

The Appellate Court of Illinois, in applying its legal concept of invitee to situations where services were rendered between family relations concluded that a person who is on premises for a purpose connected with the owner's business, for an activity which the owner carries on or Permits to be carried on, or for a mutually beneficial interest or by invitation of the owner is an 'invitee.' Drews v. Mason, 29 Ill.App.2d 269, 172 N.E.2d 383 (1961). Likewise, the Court in Wilson v. Bogert, 81 Idaho 535, 545, 347 P.2d 341, 347 (1959), stated:

'Where a person enters upon the premises of another for a purpose connected with the business there conducted, or the visit may reasonably be said to confer or anticipate a business, commercial, monetary or other tangible benefit to the occupant, the visitor is held to be an invitee.'

The District Court of Appeals for the State of California, Speece v. Browne, 229 Cal.App.2d 487, 491--492, 40 Cal.Rptr. 384, 387--388 (1964), in analyzing the holdings of three of its own state's decisions, pointed out that in each case the defendant received a benefit from the presence of the plaintiff consisting of something more than the intangible benefit conferred by social visitors. The Court noted in particular the opinion of Cain v. Friend, 171 Cal.App.2d 806, 341 P.2d 753 (1959), as standing for the proposition that if a person is expressly or impliedly invited to visit an owner's premises To perform services beneficial to such owner, that person is an invitee and not a licensee.

In tempering this expanded concept of invitee in light of the firmly established rule regarding the status of a 'social guest,' the Court in Pandiscio...