Mendez v. Knights of Columbus Hall, 14687

• Decision Date: 31 July 1968
• Docket Number: No. 14687,14687
• Citation: 431 S.W.2d 29
• Parties: Enrique H. MENDEZ et ux., Appellants, v. The KNIGHTS OF COLUMBUS HALL, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 29

431 S.W.2d 29

Enrique H. MENDEZ et ux., Appellants, v. The KNIGHTS OF COLUMBUS HALL, Appellee.

No. 14687.

Court of Civil Appeals of Texas San Antonio.

July 31, 1968.

Bonilla, DePena, Read & Bonilla, L. Taylor Zimmerman, Corpus Christi, for appellants.

Lewright, Dyer & Redford, W. N. Woolsey, Corpus Christi, for appellee.

KLINGEMAN, Justice.

This is an appeal from a summary judgment granted defendant, The Knights of Columbus Hall, in a slip and fall case. Plaintiff Anita Mendez is the wife of Enrique H. Mendez, a member of the Ram Rodriguez Orchestra which had been employed to play for a New Year's Eve dance being sponsored by the defendant at the Knights of Columbus Hall near Falfurrias, Brooks County, Texas. Anita Mendez, while walking towards the bandstand from a table where she had been seated in said hall, slipped and fell and was injured as a result thereof.

Plaintiffs' sole point of error is that the pleadings, depositions and affidavits on file were sufficient to raise triable disputed issues of fact.

It is settled that in a summary judgment case the burden is upon movant to prove that there is no genuine issue of a material fact, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. Defendant asserts that the trial court did not err in granting its motion for summary judgment because, as a matter of law, there was no evidence of a probative value that plaintiff occupied the statute of an invitee; that she was injured while occupying the status of a licensee, and that the only duty defendant owed plaintiff was the duty not to injure her willfully, wantonly, or through gross negligence. Plaintiffs contend that Anita Mendez was an invitee on the premises and, in the alternative, that even if she was a mere licensee, that she was injured as a result of a dangerous condition existing on the premises, and there was a duty on the part of defendant to warn her or make the condition reasonably safe.

It is undisputed that on the occasion of the accident, defendant was sponsoring a New Year's Eve dance; that admittance to such dance was upon the basis of ticket purchases, and that Anita Mendez did not purchase a ticket. Plaintiffs contend, however, that it was a custom in the dance-band industry that wives of members of the orchestra are admitted free of charge to dances where their husbands are playing; that on the night of the accident defendant admitted Anita Mendez and some other wives of the orchestra members into the dance hall and supplied them with a table and chairs, and that there was a mutual benefit and advantage in having Anita Mendez and wives of other band members in attendance on the occasion. Oscar Hinojosa, a member of the Knights of Columbus, was the chairman in charge of procuring an orchestra for such dance. A written contract was entered into between Ram Rodriguez and the Knights of Columbus, wherein Ram Rodriguez agreed to have his full orchestra (8 pieces) perform from 9 p.m. to 1 a.m. on the night of such dance, and the Knights of Columbus agreed to compensate said orchestra in an amount not to exceed $500.00.

Oscar Hinojosa testified that on December 31, 1966, members of the Ram Rodriguez orchestra arrived by bus and were admitted by him to the stage entrance of such hall; that thereafter he walked around the hall to the front entrance and while doing so encountered several ladies who said they were wives of the orchestra members and asked whether he had a reservation for them; that he told them he did not, that he did not know they were coming, and that the dance was completely sold out and there was no more room for anyone; that after some discussion the ladies were permitted to come in the hall and were seated at a table near the bar in the rear end of the hall. He testified that the only reason they were allowed to come in was that it was a cold night, and that he accommodated them to get them out of the cold.

Anita Mendez testified that it was customary for wives of orchestra members to be admitted into dances without charge, and while there was some discussion as to their being admitted, that they were admitted without objection. Enrique H. Mendez testified that they never paid to have their wives admitted to dances where they played, and by affidavit stated that in the event his wife and other wives of band members were not admitted he would not have remained and played on this occasion, and that based on his knowledge of the subject neither would other band members have remained. Mendez testified that he had played in Ram Rodriguez's orchestra only for a couple of weeks. Hinojosa testified that he was not aware of any such custom, that there was no such custom at this dance hall; that in the negotiations with Ram Rodriguez such custom was not mentioned, and that the contract did not provide that the wives be admitted free; that no one ever told him that if the wives were not admitted the orchestra would not play.

The Knights of Columbus Hall is a split-level hall with four levels, the highest being located at the north end where the bar is located, and which level is carpeted; the dance area is on the lowest level, with the stage for the orchestra at the rear of this level; there are two intermediate levels and chairs and tables for...