Napier v. First Congregational Church of Portland

• Decision Date: 13 July 1937
• Parties: NAPIER v. FIRST CONGREGATIONAL CHURCH OF PORTLAND et al.
• Court: Oregon Supreme Court

70 P.2d 43

157 Or. 110

NAPIER v. FIRST CONGREGATIONAL CHURCH OF PORTLAND et al.

Supreme Court of Oregon

July 13, 1937

In banc.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by W. P. Napier against the First Congregational Church of Portland, a corporation, and others to recover damages for personal injuries sustained by falling down a stairway in the basement of a church building in an attempt on plaintiff's part to find and enter a lavatory. From a judgment of dismissal as to the individual defendants plaintiff appeals.

Affirmed.

T. Walter Gillard, of Portland (Wm. P. Lord, of Portland, on the brief), for appellant.

W. K Phillips and Willis Potter, both of Portland (Sheppard &amp Phillips, of Portland, on the brief), for respondents.

KELLY Justice.

This action was brought against defendant, First Congregational Church of Portland, Or., and the trustees and pastor thereof as individuals. Plaintiff seeks to recover damages for personal injuries sustained by falling down a stairway leading to the basement of the church building.

After the opening statements to the jury were made, defendants objected to the introduction of any testimony and moved for a dismissal of the cause upon the ground that plaintiff's amended complaint failed to state a cause of action.

Plaintiff took an order of voluntary nonsuit as to defendant, First Congregational Church of Portland. The court entered an order of dismissal as to the individual defendants.

The question is whether or not the amended complaint states a cause of action against said individual defendants.

In said amended complaint, plaintiff alleges:

"That during all the times herein mentioned, the defendant, First Congregational Church of Portland, was and now is a corporation organized under the laws of the State of Oregon and is the owner of certain property located at Park and Madison Streets, Portland, and in connection therewith, defendants maintain and operate an office and employees who give advice and invite the general public to interview defendants' employees regarding personal problems."

"That defendants, J. C. Plankington, W. W. Ross, E. N. Morse and Raymond B. Walker, were at all times herein mentioned, trustees of the above named corporation and were charged with the responsibility of managing and controlling the property and buildings owned by the defendant corporation and were further charged with the further responsibility of the maintenance and operation of said buildings and property and defendant Dr. Raymond B. Walker, as the minister of said defendant corporation, was ex-officio member of the board of trustees and in the absence of the chairman of said board of trustees, presided at the meetings of said board of trustees."

"That on the 1st day of June, 1934, plaintiff went to interview said Dr. Raymond B. Walker, pursuant to afore said invitation, and while plaintiff was awaiting the privilege of interviewing said doctor, the plaintiff had occasion to go to the lavatory and plaintiff thereupon opened a door and stepped forward and the said door led down a steep stairway to the basement and as plaintiff stepped forward, plaintiff stepped into the open place made by said stairway and was thereby precipitated down said stairway and sustained the following injuries:" [Here follows a description of injuries and the ad damnum clause.]

"The defendants were negligent and careless in that the defendants failed to keep said door locked and/or marked, informing the public that said door was an entrance to a basement stairway and were negligent and careless in not placing a false door in front of said stairway, all of which negligence proximately caused plaintiff the injuries and damages alleged."

The question thus presented is whether or not the plaintiff's amended complaint alleges facts which disclose that it was negligence of a character entitled plaintiff to recover by reason of defendants failing to keep the door locked through which plaintiff passed in his quest for a lavatory, or failing to have said door marked informing the public that it was an entrance to a stairway, or not placing a false door in front of said stairway.

This leads to the question as to the status of plaintiff. We think that plaintiff was a mere licensee. Assuming that for the purpose of interviewing Dr. Walker, the plaintiff was an invitee, when he chose to seek a lavatory he embarked upon a quest for which he had not been invited.

"Where a person has entered upon the premises of another under invitation, express or implied, he is bound by that invitation, and becomes a bare licensee if he goes, for purposes of his own, to some part of the premises other than that to which he was invited, uses the premises for purposes or in ways other than those for which they were intended or to which his invitation extends, or remains on the premises beyond a reasonable time after his invitation has expired." 45 Corpus Juris, subject, Negligence, p. 794, § 198.

The law is well settled that a bare licensee, barring wantonness or some form of intentional wrong or active negligence by the owner or occupier, takes the premises as he finds them.

There is no allegation of an invitation, either express or implied, upon the part of appealing defendants to plaintiff that he make any other use of the premises, except that of calling upon Dr....