McNamara v. Hall

• Decision Date: 12 July 1951
• Docket Number: No. 31545,31545
• Citation: 233 P.2d 852,38 Wn.2d 864
• Parties: McNAMARA et ux. v. HALL et ux.
• Court: Washington Supreme Court

Page 864

38 Wn.2d 864

233 P.2d 852

McNAMARA et ux. v. HALL et ux.

No. 31545.

Supreme Court of Washington, Department 1.

July 12, 1951.

Harry Ellsworth Foster, Pebbles and Kuykendall, Olympia, for appellants.

Frederick J. Orth, of Rode, Cook & Watkins, Seattle, for respondents.

DONWORTH, Justice.

This is an appeal from a judgment dismissing plaintiffs' action after the trial court had sustained defendants' demurrer to the second amended complaint without leave to amend. The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff wife while riding in an elevator located in defendants' home.

The pertinent portions of the second amended complaint are as follows:

'III

'Prior to July 23, 1949, defendants had negligently constructed and installed in said dwelling house and on said date were maintaining and operating therein a dangerous instrumentality, to-wit: a large dumbwaiter or small freight elevator which was then being used as, and purported to be, a passenger elevator and which was unsafe, insecure, dangerous, defective, and improperly installed, as more particularly alleged hereinafter. At all times herein mentioned said dangerous instrumentality was under the exclusive control and management of defendants, and plaintiffs had no knowledge or notice whatsoever of its dangerous character and defective condition.

'At all times herein mentioned defendants well knew that plaintiffs had no knowledge or notice of the said defective condition and dangerous character of said instrumentality, but nevertheless wholly failed to inform or notify the plaintiffs, or either of them, thereof.

'IV

'On the 23rd day of July, 1949, plaintiffs, and each of them, were guests of defendants in the above mentioned dwelling house of defendants. While plaintiffs were in the said house, as aforesaid, defendants invited plaintiffs to enter said elevator, become passengers therein, and descend therein from one floor level of said house to another. Because of the said express invitation extended to plaintiffs by defendants, plaintiffs believed said elevator to be safe, and accepted said invitation, entered said elevator, and became passengers therein. Immediately thereafter, and while plaintiffs were passengers in said elevator, if fell with great speed to the basement of defendants' dwelling house and caused the damages and injuries hereinafter alleged.

'V

'The sole and proximate cause of said damages and injuries to plaintiffs was the negligence of defendants in the construction, installation, operation, management and maintenance of said elevator and its machinery and mechanical equipment, which negligence is not known to plaintiffs, and is exclusively within the knowledge of defendants.

'Plaintiffs allege on information and belief that defendants were negligent in the following particulars:

'1. They knew, or by the exercise of reasonable care should have known of the dangerous and defective character of said instrumentality.

'2. They failed to inspect said instrumentality properly, or to cause it to be inspected property prior to the time of the aforesaid accident.

'3. They failed to equip said instrumentality with any safety devises whatsoever, including the following; springs with shock absorbers to cushion the impact in event the elevator carriage fell, automatic catches to stop the carriage in the event it started to fall, proper brackes or any brakes whatsoever, and counter-balancing weights.

'4. They caused and permitted an excessive amount of weight to be in the said carriage at the time of the said accident.

'5. They failed properly to align and secure the shieves on which the cables, which held the said carriage, moved.

'6. They installed the shieves in such a manner that the cables would not stay on them.'

The broad question presented by this appeal is whether this complaint stated a cause of action. The answer to that question depends on whether the complaint alleged the breach of a duty owed by respondents to appellants.

Appellants concede that appellant wife, as a social guest of respondents, was a mere licensee on respondents' premises. It is clear, and appellants do not challenge the rule, that the duty of an owner or occupier of premises to a licensee on the premises is not to wilfully or wantonly injure him. Garner v. Pacific Coast Coal Co., 3 Wash.2d 143, 100 P.2d 32; Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d 838; Deffland v. Spokane Portland Cement Co., 26 Wash.2d 891, 176 P.2d 311.

In the case of Garner v. Pacific Coast Coal Co., supra, we said: 'A long line of decisions in this state has emphatically declared and definitely settled the rule that, as to a bare or mere licensee, the owner or occupant of land owes only the duty of not wilfully or wantonly injuring him.' [3 Wash.2d 143, 100 P.2d 35.]

Appellants do not contend that they alleged wilful or wanton negligence on the part of respondents and we are of the opinion that they did not.

In Murray v. Oregon-Washington Railroad & Navigation Co., 175 Wash. 320, 27 P.2d 574, 576, we said, quoting from Price v. Gabel, 162 Wash. 275, 298 P. 444: "To constitute a willful and wanton injury, the act which produced it must have been knowingly and intentionally committed, or it must have been committed under such circumstances as to evince a reckless disregard of the safety of the person injuried."

Appellants clearly did not allege a wilful, that is, an intentional injury. Was there an allegation of wanton injury? Knowledge by respondents of the dangerous or defective character of the elevator is essential to a finding of wanton injury. Price v. Gabel, supra; Garner v. Pacific Coast Coal Co., supra.

In paragraph III of the complaint appellants alleged that they did not know of the elevator's dangers and defects and that respondents knew they did not. This was manifestly not an allegation of respondents' knowledge of the dangers and defects. In paragraph V it is further alleged on information and belief that rerespondents' knowledge of the dangers and sonable care, should have known of the dangerous and defective character of the elevator. We have expressly held such an allegation insufficient to charge actual knowledge. Price v. Gabel, supra. Being stated in the alternative, the allegation must stand or fall on the weaker of the alternatives. Thus, the complaint did not allege a breach of the occupier's duty not to wilfully or wantonly injure a licensee on the premises.

Appellants' primary contention, as stated in their brief, is as follows:

'The law is not challenged by the appellants that the occupier of the...