McHenry v. Howells

• Decision Date: 30 June 1954
• Citation: 201 Or. 697,272 P.2d 210
• Parties: McHENRY v. HOWELLS et al.
• Court: Oregon Supreme Court

Page 210

272 P.2d 210

201 Or. 697

McHENRY v. HOWELLS et al.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 2, 1954.

Decided June 30, 1954.

Orval Thompson, Albany, argued the cause for appellant. On the brief were Mark V. Weatherford and Sam Kyle, Albany.

George H. Fraser, Portland, argued the case for respondents. With him on the brief were Warren A. McMinimee, Tillamook, and Cleveland C. Cory and Patricia A. Young, Portland.

Before LATOURETTE, C. J., and LUSK, BRAND and TOOZE, JJ.

TOOZE, Justice.

This is an action to recover damages for personal injuries suffered as the result of alleged negligence, brought by plaintiff Georgia McHenry against Horace W. Howells and Jane Howells, his wife, as defendants. The trial court sustained defendants' motion for an involuntary nonsuit and dismissed the action. Plaintiff appeals.

Plaintiff resides at Corvallis, Oregon. She is the mother of the defendant Jane Howells. On Monday, February 4, 1951, plaintiff went to Toledo in an automobile driven by her husband. Defendant Jane Howells picked up her mother at Toledo and took her to the Howells home in Newport for a social visit of several days.

Defendants built their Newport home in 1946, but in 1949 or 1950, they remodeled it. At that time a stairway from the first to the second floor was constructed. The steps of the stairway were built of knotty pine wood and were of natural color. They were as wide as ordinary steps and had a rise of approximately seven inches. The siding of the stairway was covered with light-colored wall board. The wall-to-wall carpet in the hall at the bottom of the stairway was dark red. The door at the bottom of the stairway was opposite a window covered with heavy drapes, and this door opened outward toward a bedroom. The bottom of the door was constructed flush with the top of the first step.

Lighting was available to the stairway from three sources: (1) outdoor light from a window directly opposite the stairway door; (2) electric lamps in a den which opened into the hall; and (3) an electric light in the attic at the top of the stairway.

This stairway was the scene of plaintiff's mishap on Thursday morning, February 8, 1951. On previous visits to her daughter's home, and had been up and down the stairs a half dozen times, more or less, without any difficulty, but on this particular visit she had not had occasion to use the stairway prior to the accident.

Just prior to the accident, plaintiff had decided to assist her daughter by doing some ironing while her daughter was absent from the house. She had ascended the stairs to see if the clothes hanging in the attic were sufficiently dry to be ironed. Some of her own wearing apparel was included. Taking a few of the articles on her arm, intending to return later with a clothes basket to get the remainder, plaintiff started down the stairs. The stairway door was open. While descending the stairs she had reached the second step from the bottom and from appearances being impressed that it was the bottom step, she stepped forward thinking she was stepping out on the floor, when in fact she was two steps up. As a result, she suffered a bad fall, causing the personal injuries of which she complains.

Upon the express invitation of defendants, plaintiff was a social guest in their home, enjoying their hospitality. No element of business was connected with her visit in the home, and hence, she was in no sense a 'business invitee', as that term is defined in the law of negligence. Her status was that of a licensee, and the duty owed to her by defendants was the duty owed by an owner, possessor, or occupant of land to a licensee. The authorities are quite uniform in so holding. Some difficulty has been experienced by the courts in classifying the status of a social guest. In an exhaustive note in 25 A.L.R.2d 598, 600, the author says:

'The terminology of status (that is, the classification into invitees, licensees, and trespassers) used in classifying the liability of an owner, possessor, or occupant of land to one injured while on the land due to defects therein has caused some difficulty in discussing the issue of liability to a social guest in a home who is injured by the defective condition of the property, since, while such a guest is clearly on the property as the result of an 'invitation' in the layman's sense of that word, the authorities have universally agreed that he should not be entitled to the same degree of care for his safety as one who is on the property of another as what is sometimes called a 'business invitee', that is, for the purpose of conferring some benefit other than purely social.

'Despite the express or implied invitation upon which the social guest relies in coming to his host's premises, the courts have concurred in classifying him as a 'licensee' of some sort * * *.'

In 38 Am.Jur. 778, Negligence, § 117, it is stated:

'Although there is not a great deal of authority upon the point, the rule appears to be that the relation between host and guest is not that of invitor and invitee, but that of licensor and licensee, and that, in accord with the general principle which determines liability of an owner or occupant of premises to one who comes thereon as a mere licensee, the host is not liable for an injury sustained by the guest from some defect in the condition of the premises, except as the licensee is needlessly exposed to a peril through the failure of the owner or occupant to warn him of danger, or by the active negligence of the owner or occupant. There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratutiously extended. * * * A better reason for the rule is that a host merely offers his premises for enjoyment by his guests with the same security that the host and the members of his family who reside with him have. However, the rule is that a host...