McMullen v. M. & M. Hotel Co.

• Decision Date: 06 February 1940
• Docket Number: 44813.
• Citation: 290 N.W. 3,227 Iowa 1061
• Parties: McMULLEN v. M. & M. HOTEL CO. et al.
• Court: Iowa Supreme Court

290 N.W. 3

227 Iowa 1061

McMULLEN v. M. & M. HOTEL CO. et al.

No. 44813.

Supreme Court of Iowa.

February 6, 1940

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Action for damages because of personal injuries. The court directed a verdict for the defendant. Plaintiff appeals.

Affirmed.

RICHARDS, OLIVER, and MITCHELL, JJ., dissenting.

In action against hotel company for injuries to customer of hotel drug store who fell in open trap door in prescription room while attempting to enter to use telephone, evidence held not to establish that manager was guilty of willful or wanton misconduct in directing customer to the telephone in absence of showing that he knew that trap door was open.

L. D Dennis and D. M. Elderkin, both of Cedar Rapids, for appellant.

Carl F Jordan, of Cedar Rapids, for appellees.

MILLER Justice.

This is an action at law for damages because of personal injuries received by the plaintiff while on the premises of the defendant hotel company. The petition alleged that the hotel company also operated a drug store for the convenience of its guests; that the plaintiff, while a guest of the hotel, went into the drug store for the purpose of making a purchase, and, while waiting to be waited upon, asked permission of the manager of the drug store to use the telephone, which was there located and kept for the use and convenience of customers of the store and guests of the hotel; that the manager advised plaintiff she could use the telephone and pointed it out to her; that it was located adjacent to and partially behind the prescription case, could not be used except by passing partially behind the case and pushing to one side a small swinging door about three or four feet in height; that, at the time the consent was given and plaintiff was invited and directed to use the telephone, there existed a dangerous, hazardous, obscure and hidden opening in the floor immediately in front of the telephone and adjacent thereto made by the lifting of a trap door, which led from the floor of the drug store proper to the basement below, concerning which dangerous opening the manager had full knowledge, or should have had such knowledge through exercise of ordinary care; that the dangerous opening was hidden from the plaintiff's view and plaintiff had no knowledge of the same; that plaintiff, while exercising due care and caution, and while attempting to use the telephone with the express consent of the manager of the store, and upon his invitation and direction, without being apprised by him of the dangerous and hazardous conditions, and with no knowledge of such, stepped into the open pit, fell to the basement below and was injured on account thereof.

Plaintiff alleged that the defendant was negligent (1) in directing, inviting and permitting her to use the telephone in front of a dangerous opening in the floor well knowing she could not possibly use the telephone without stepping into the pit; (2) in directing, inviting and permitting her to use the telephone located as aforesaid without giving any warning of the hazards and dangers surrounding it; (3) in creating and maintaining a dangerous and hazardous condition and permitting it to exist at a place where guests of the hotel and customers of the drug store, and the public generally, were permitted to use the telephone, well knowing that it could not be used without exposing one to the hazards and dangers of falling into a hidden opening.

The defendants' answer was a general denial.

The testimony showed that the plaintiff and her husband were guests at the Hotel Montrose, operated by the defendant; that, in connection with the operation of such hotel, the defendant also operated a drug store and distributed in the rooms of the guests placards which constituted an invitation to use the drug store for the purchasing of drugs, toiletries, candies, luncheons, sandwiches, perfumes, novelties etc. On the evening of the accident, the plaintiff and her husband were seated in the lobby of the hotel visiting with one Dr. Harmon, a dentist. Plaintiff was desirous of using the telephone and getting something to eat. She knew that the hotel maintained public telephones in the lobby and knew where they were located. She learned from Dr. Harmon that she could use a telephone in the drug store, that was not a pay telephone. She testified that she entered the drug store alone for the purpose of getting something to eat and using the telephone. Upon entering the drug store, she found that the place was busy and " passed up" getting anything to eat. She looked for Mr. Wolf, the manager of the drug store, to inquire about the telephone. Failing to see him, she started back toward the lobby and gave up the idea of using the telephone for the moment. As she was walking out of the drug store, she saw Mr. Wolf seated at one of the tables with a couple of ladies. He said to her, " What can I do for you, Mrs. Mac?" She asked if she could use the telephone. He said, " Certainly, right over there", and pointed to the telephone. In attempting to use the telephone the plaintiff fell into an open stairway and was injured.

There were introduced in evidence and certified to this court photographs showing the location of the telephone in question. In a corner of the drug store is a partition which forms a small, approximately square, prescription room. The entrance to the prescription room is open, except for a swinging door, extending approximately three feet up from the floor. As one approaches this entrance, the telephone in question is located at the left side of the swinging door and inside the prescription room, but accessible through the opening above the swinging door. Plaintiff testified that she approached the telephone, reached for it, but being short of stature, five feet one inch in height, and having short arms, she could not reach the telephone without entering partially the prescription room. She pressed her knee against the swinging door in attempting to reach the telephone. It opened. She fell forward and down the steps to the basement.

The evidence showed that there was a trap door over the steps to the basement, which constituted the floor of the prescription room. When the trap door was open, the prescription room could not be used. The trap door extended to within a few inches of the swinging door and was open at the time the plaintiff fell. She testified that she did not see the opening. Her reasons for not seeing it are asserted, (1) that it was hidden by the swinging door and (2) that she was looking at the telephone. The drug store appears to have been well lighted and there is no evidence justifying any conclusion that the prescription room was dark at the time. The photographs, introduced in evidence, demonstrate that it must have been lighted from the lights of the drug store, if from no other source. There was also evidence that guests of the hotel, customers of the drug store, and the public generally, had been permitted to use the telephone when permission was asked, and that often the telephone was used without asking permission. One of plaintiff's witnesses testified that, in using the telephone without permission, he acted as an interloper.

At the close of the testimony, the defendant made a motion for a directed verdict, on the following grounds: (1) that plaintiff failed to sustain the allegations of her petition and, if a verdict were returned in her behalf, it would be the duty of the court to set it aside for lack of sufficient evidence to sustain it, (2) that the undisputed evidence showed that the plaintiff was a mere licensee toward whom the defendant owed no duty, except to refrain from wantonly or intentionally injuring her, and that there was no evidence of such an injury, (3) there was no evidence to disclose who opened the trap door, nor how long it was open, and no showing that defendant had any knowledge of the dangerous condition existing at the time of the injury, (4) that the plaintiff entered the prescription room, which was not a part of the drug store into which customers were invited, for a purpose of her own to use the telephone and save the cost of using the public telephone and, while plaintiff was so acting, defendant owed her no duty except to refrain from wantonly or maliciously injuring her, (5) that the situation, at the place where the gate or barrier separated the prescription room from the drug store, was open and observable to anybody who would look, was not concealed, if plaintiff had looked, she could not help seeing the open cellarway and steps, she did not look and was guilty of contributory negligence as a matter of law.

The motion for directed verdict was sustained generally. Plaintiff appeals from such ruling.

The first question presented to us for determination is the status of the plaintiff at the time of her injury. She contends that she was an invitee, whereas defendant contends that she was a mere licensee. In defining these two terms and the duties owed to those coming within the contemplation of such terms, this court states in the case of Printy v Reimbold, 200 Iowa 541, 546, 202 N.W. 122, 124, 205 N.W. 211, 41 A.L.R. 1423, as follows: " It is the universal rule that persons entering voluntarily upon the premises of another, out of idle curiosity or for their own pleasure or advantage, take the same as they find them, and the owner or occupier thereof is bound only to avoid wanton or willful injury to them; but if the purpose of going upon the premises is the common interest, or for the mutual advantage of the parties, an implied invitation which makes it the duty of the owner or occupier to maintain the same in a reasonably safe condition may be inferred. Keeran v. Spurgeon Merc. Co., ...