Nelson v. F.W. Woolworth & Co.

• Decision Date: 23 June 1930
• Docket Number: 39950
• Citation: 231 N.W. 665,211 Iowa 592
• Parties: RAY NELSON, Appellant, v. F. W. WOOLWORTH & COMPANY, Appellee
• Court: Iowa Supreme Court

231 N.W. 665

211 Iowa 592

RAY NELSON, Appellant, v. F. W. WOOLWORTH & COMPANY, Appellee

No. 39950

Supreme Court of Iowa, Des Moines

June 23, 1930

REHEARING DENIED DECEMBER 13, 1930.

Appeal from Wapello District Court.--GEORGE W. DASHIELL, Judge.

This was an action by the plaintiff to recover from the defendant damages for personal injuries. Such injuries were received by the plaintiff when a customer in defendant's store. While there as such customer, plaintiff fell down an open stairway. There was a trial to a jury, but at the end of the plaintiff's testimony, the district court directed a verdict for the defendant. From this ruling the plaintiff appeals.

Reversed.

Gilmore & Moon, for appellant.

McNett McNett & Kuhns, for appellee.

KINDIG J. MORLING, C. J., and STEVENS, DE GRAFF, and WAGNER, JJ., concur. EVANS, ALBERT, and GRIMM, JJ., dissent. FAVILLE, J., took no part.

OPINION

KINDIG, J.

The defendant-appellee is a corporation operating a five and ten cent store in Ottumwa. Its place of business is in a building on Main Street. Said street extends east and west, and appellee's store is on the south side thereof. Thus the store faces the north, and extends southward a considerable distance, probably 140 feet, while the width of the store is approximately 44 feet. There is also an entrance to the store from the rear. It appears that on the west side of the store there are counters, within close proximity to each other, extending from near the entrance to the rear part of the building. Likewise, there are counters down the center, and again, there are counters on the east side of the store from the entrance to near an office at the rear end. These counters on the east side are close to the east wall. Between the ends of the counters are small passageways through which the clerks proceed back and forth. East of this row of counters, and along the east wall, are shelves, on which goods are kept for sale. An aisle for clerks exists between the east wall and the east row of counters. South of this east row of counters is an office, constructed apparently by placing lattice, or similar work, above desks. Entrance to the office is on the west side thereof, near the rear door. North of the office is a narrow passageway 2 to 2 1/2 feet wide. That passageway is bounded on the north by the southernmost counter on the east side of the building, and by an open stairway. This open stairway is immediately east of such southernmost counter, and directly north of the passageway. Uncertainty appears concerning the nature of the protection at the north side of the stairway opening. However, that is immaterial, so far as the present discussion is concerned.

In the framework of the office, fronting on the aforesaid passageway, directly in front of the open stairway, is a small opening, through which papers and articles are passed from the outside into the office. A diagram immediately precedes, showing said southernmost counter, passageway, office, stairway, and small opening into the office. At the southeast corner of such southernmost counter there was a gate, which extended across the open stairway to the east wall.

[SEE DIAGRAM IN ORIGINAL]

On April 9, 1926, between 1:30 and 2:00 in the afternoon, the plaintiff-appellant entered appellee's store through the main entrance on the north, and proceeded southward on the west side of the east row of counters, until he came to the above-mentioned southernmost counter, where a saleslady, located on the east side of this counter in the aisle intended for clerks, waited upon the appellant. After purchasing three bread pans and some salt and pepper shakers, appellant, who was a restaurant keeper, noticed some larger pans on the shelves along the east wall back of the counter. So, while the saleslady was wrapping the articles purchased, the appellant, without her knowledge or consent, proceeded to the south end of the previously mentioned southernmost counter, and then started down the passageway along the office to the east. The gate was not closed, and appellant fell down the stairs, where he received the injuries for which he now demands damages.

Liability for the injury is denied by appellee on several theories.

First, it is claimed that appellant, when he proceeded down said passageway, was a mere licensee, and not an invitee, because the passageway was intended for clerks only.

Second, appellee asserts that, even though appellant may have been an invitee, yet he cannot recover, for the reason that appellee was not negligent. No negligence appears, appellee maintains, simply because there is an open stairway in a store building frequented by the buying public.

Third, it is insisted by appellee that, although appellant was an invitee and negligence appeared on the part of the store, yet there can be no recovery, because of the appellant's contributory negligence. Contributory negligence, appellee says, is shown because appellant, when walking through the passageway, had his eyes upon the pans on the shelf, and did not look for dangers that might exist on or near the floor.

Contrary to appellee's contentions in that regard, the appellant declares: First, that the appellee was negligent because the gate aforesaid was not closed; and, second, that appellant did not in any way contribute to his injury through negligence. Consequently, a solution of the problem necessarily requires a discussion of those conflicting claims.

I. Was appellant an invitee in appellee's store? Manifestly, he was, to a limited extent. A public store was being operated by appellee, and its doors were open to the public. Appellant was an actual customer. Therefore, so far as his position in the aisle west of the counters is concerned, he was an invitee. When, however, the appellant left the aisle conceded to be for customers, and entered the narrow passageway between the office and the southernmost counter, it is more difficult to determine his status. While in that passageway, appellant claims to have been an invitee, but appellee contends that he then was only a mere licensee.

"One who is on the premises of another as a customer, for the purpose of purchasing goods, is there by implied invitation, and is entitled to the care and protection due an invitee." Keeran v. Spurgeon Merc. Co., 194 Iowa 1240, 191 N.W. 99 (local citation 1242).

Nevertheless, such invitation does not permit the customer to go upon those portions of the store which the storekeeper "would not reasonably expect the invitee to use in connection with the conduct of business on said premises." Keeran v. Spurgeon Merc. Co. (194 Iowa 1240, 191 N.W. 99), supra. Concerning this, we said in the Keeran case, supra:

"Even though a person is an invitee upon the premises of another, the duty of the owner of the premises to maintain the same in a safe condition applies only to that part of the premises that is appropriated by the owner as a place in which his business is conducted, and the necessary and proper part of said premises reasonably to be used by the invitee to gain access to the portion of the premises used for the purposes of business. The invitation, express or implied, to conduct business upon the premises is an invitation to use the premises in the ordinary and usual manner in which business is conducted thereon; and it does not render the owner or occupant of the premises liable for negligence where the invitee is using a portion of the premises to which the invitation has not been extended, either expressly or impliedly, and which the occupant would not reasonably expect the invitee to use in connection with the conduct of business on said premises."

To the same effect, see Knote v. City of Des Moines, 204 Iowa 948, 216 N.W. 52. Consistent with the foregoing doctrine is the following excerpt from Wall v. F. W. Woolworth Co., 209 Ky. 258 (272 S.W. 730), wherein the court said:

"If the stairway was upon a part of its [the storekeeper's] premises to which the public was not invited, and had no right to go, the company, as to appellant [the customer], owed no duty to have and keep the place safe. The general rule, as stated in Thompson on Negligence, Section 988, is that a merchant is not required to keep his premises safe, but only that part to which his customers are invited. But this duty does not extend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the reception of visitors or customers, and where they are not expected or invited to go."

Applying the same theory, the Court of Errors and Appeals of New Jersey, in MacDonough v. F. W. Woolworth Co., 91 N.J.L. 677 (103 A. 74), stated:

"She [the customer] saw counters with merchandise displayed upon them, one extending down the middle of the store and one down each side, the latter in front of wall shelves of merchandise, with a space for the saleswomen to work between the wall shelves and the counters. Such an arrangement in itself extended no invitation to a customer to go behind these side counters into the space which was obviously for employees, and in a case involving nothing more, there being no evidence of invitation, a court, and not a jury, question would arise."

Obviously therefore, a customer in a store is not an invitee to such portions thereof as are plainly intended for the use of the proprietor and the sales people only. As soon as the customer steps beyond that part of the store meant for the invitee, and enters the space evidently not so intended, he becomes a mere licensee, or trespasser. What is here said has no reference to express invitations to the customer by the storekeeper, nor does the pronouncement just made relate to those instances where, by special...