Peebles v. Exchange Bldg. Co.

• Decision Date: 08 November 1926
• Docket Number: No. 4482.,4482.
• Parties: PEEBLES et al. v. EXCHANGE BLDG. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.2d 335 (1926)

PEEBLES et al. v. EXCHANGE BLDG. CO.

No. 4482.

Circuit Court of Appeals, Sixth Circuit.

November 8, 1926.

Jere Horne, of Memphis, Tenn. (Walsh & Bell, of Memphis, Tenn., on the brief), for plaintiffs in error.

Walter P. Armstrong, of Memphis, Tenn. (Wilson, Gates & Armstrong and Chandler, Bates, Shepard & Owen, all of Memphis, Tenn., on the brief), for defendant in error.

Before DENISON and MOORMAN, Circuit Judges, and COCHRAN, District Judge.

ANDREW M. J. COCHRAN, District Judge.

The writ of error before us complains of the judgment of the lower court, dismissing the declarations of the plaintiffs on a directed verdict for the defendant. The defendant is the owner and operator of an office building in the city of Memphis, 20 stories high, 19 of which are rented. It faces east, and extends from north to south, or vice versa. On each floor there is a corridor so extending. The offices are between it and the front. The elevators, seven in number, are on the west side. A stairway, as is usual in such buildings, winds around the elevator from floor to floor. We are concerned only with the stairway from the tenth to the ninth floor, and it is only necessary to describe it. It is entered from the corridor on the tenth floor, adjoining and south of the elevators. It descends therefrom westwardly two steps to a landing, from thence northwardly two steps to another landing, and from thence eastwardly to the ninth floor. An electric light fixture is stationed above the first landing and a banister runs along the side of each flight of steps. There is a toilet on each floor. Those on the twelfth and sixth floors only are intended for the use of women. The door of each toilet has a night latch, and it is intended that it should always be kept locked. Signs are posted on the outside and inside of each door. That on the outside reads, "Toilets for Tenants Only." That on the inside "Don't Forget Your Key." The elevators run regularly; i. e., on scheduled time, possibly every five minutes. The signals given from each floor are intended only to indicate the floors at which stops shall be made. When one completes its ascension, it at once descends. On Sundays only three elevators are operated. There is a grill door from the corridor to the stairway on the third floor. This door is kept locked on Sundays. The electric light fixtures over the landings in the stairways are not lit on those days.

A practicing physician, Dr. Robert G. Henderson, had an office on the tenth floor. The plaintiffs, wife and husband, lived across the Mississippi river in Arkansas, and the husband was a patient of the doctor. On Sunday, October 7, 1923, between 10 and 11 o'clock in the morning, he, accompanied by his wife, visited the doctor, who was expected to prescribe a new treatment. She went along in order that the doctor might tell her how to use it. Whilst they were waiting his turn, she had occasion to use the toilet. On a previous visit she had used the toilet on that floor. She was permitted to do so by the female attendant of the doctor. It would seem that on that occasion the door was locked, and the attendant furnished the key or unlocked the door for her. Previously she had visited a doctor — Dr. Livermore — whose office was on the thirteenth floor. On this visit she also had occasion to use the toilet. She was directed to the toilet on the lower floor, the twelfth, where was one of the two toilets set apart for the use of women. She found it unlocked.

On the last visit, the one in question here, the female attendant of Dr. Henderson was not present. Upon becoming aware of the call of nature, she went to the toilet on that floor and found it locked. She returned to the doctor's office to see if she could find Dr. Henderson or another doctor, possibly an assistant, in the reception room, likely for the purpose of obtaining the key. They were not there. She then looked for the key, and, not finding it, determined to see if there was not a toilet on the lower (the ninth) floor, which she could use. In so doing she failed to avail herself of the opportunity of entering the office where the doctors were at work and obtaining the key from them. Her reason for not doing so was that they were busy. She reasoned that, because on the occasion of her previous visit to Dr. Livermore on the thirteenth floor she had found an open toilet on the lower (twelfth) floor, she would find one on the lower floor, ninth floor — a non sequitur. She went to the elevators and gave the signal. She waited as she testified "say five minutes" for a response. Possibly the time seemed longer than it really was. The elevator not responding, she walked briskly to the stairway and started to descend to the lower floor. She descended the first flight and passed the first landing. In descending the second flight she fell and broke her hip. According to the husband's testimony, the stairway was dark, and, when he went to her rescue, she having in the meantime crawled back upon the first landing and leaned back against the first step, he could hardly see the outline of her form from the top step and could not see the steps themselves at all. According to the testimony of a young man, who also went to her rescue, the stairway was dark, but not pitch dark. It was dim, very dim. According to her testimony it was so dark she could not see where to put her feet. In descending she held onto the banister and felt with her hands and feet how to go. She could not tell how she came to fall, except that her foot slipped or she lost her footing, on account of the darkness. There was no obstruction on the stairway to cause her to fall.

The wife and the husband each brought a separate suit to recover the damages sustained by reason of such injury. The two actions were consolidated and tried together. The ground upon which recovery was sought was that the defendant owed the female plaintiff the duty of having the electric light fixture, above the first landing on the stairway she was attempting to descend when she fell, lit, and that it was negligent in not having it lit, which negligence was the cause of her fall and injury.

The question before us for decision is whether, on the facts stated, defendant did owe such duty. Possibly it is open to claim that the female plaintiff was guilty of contributory negligence as a matter of law, and that the peremptory instruction can be upheld on this ground. But we do not find it necessary to pass on this question, as we are clear that defendant did not owe such duty to that plaintiff. In order for it to have owed it such duty, it is essential that it can be said that her attempt to descend the stairway was by the implied invitation of defendant. The declarations allege that she was on the defendant's premises by invitation. But this is not sufficient. She must have been where she was when she fell by such invitation. If in being there she was a licensee or trespasser, no recovery can be had. Licensees must take the premises as they find them. The owner thereof is not bound to care for their safety, otherwise than to refrain from setting a trap for them and other active negligence.

What is essential to make out a case of implied invitation has been stated in several recent cases. In the case of Greenfield v. Miller, 173 Wis. 184, 188, 180 N. W. 834, 836, 12 A. L. R. 982, 985, the matter is thus put: "It will be seen that in the cases of inviter and invitee there must be some benefit to the inviter in order to render him liable for failure to exercise ordinary care. There must be some mutuality of interest; and if the interest be only such as concerns the person entering, then he is but a mere licensee, and there is no implied invitation."

In the case of Robinson v. Leighton, 122 Me. 309, 312, 119 A. 809, 810, 30 A. L. R. 1386, 1389, it is stated thus: "An invitation is implied when the owner by acts or conduct leads another to the belief that the use is in accordance with the design for which the place was adapted and allowed to be used in mutuality of interest."

The Supreme Court of Maine, in a case involving an office building, to wit, Stanwood v. Clancey, 106 Me. 72, 75 A. 293, had theretofore stated the rule in these words: "It is well settled that, when the owner of a building fits it up for business uses, he impliedly invites all persons to come there whose coming is naturally incident to the business carried on there; and if he leases the building, or parts of it, to tenants, he impliedly invites all persons to come...