Roberts v. Del Monte Properties Co.

• Court: California Court of Appeals
• Writing for the Court: NOURSE; GOODELL, J., and JONES
• Citation: Roberts v. Del Monte Properties Co., 111 Cal.App.2d 69, 243 P.2d 914 (Cal. App. 1952)
• Decision Date: 12 May 1952
• Parties: ROBERTS v. DEL MONTE PROPERTIES CO., Inc. Civ. 14869.

Page 914

243 P.2d 914

111 Cal.App.2d 69

ROBERTS v. DEL MONTE PROPERTIES CO., Inc.

Civ. 14869.

District Court of Appeal, First District, Division 2, California.

May 12, 1952.

Rehearing Denied June 11, 1952.

Hearing Denied July 10, 1952.

Dana, Bledsoe & Smith, San Francisco, for appellant.

Joseph L. Alioto, Robert J. Drewes, San Francisco, for respondent.

NOURSE, Presiding Justice.

This is an appeal by the defendant in a negligence action held responsible for the injuries suffered by the minor plaintiff, who fell through a window when playing on a pile of furniture and mattresses left near it.

Defendant corporation had for many years been owner and operator of the Del Monte Hotel at Monterey, California, which hotel since the end of 1942 had been used by the United States Navy for some of its schools, the defendant remaining owner and operating and maintaining the properties for the Government. On June 15, 1948, the Government purchased the properties, but, pending the organization of a staff of its own, continued to use the services of defendant, as an independent contractor, for the operation and maintenance of said properties on the basis of a written contract. Defendant was so operating and maintaining the properties when on June 27, 1948, the accident happened. Plaintiff, John Roberts (hereinafter called John) then seven years old, was living in the west wing of the hotel building as a member of the family of his father, a Navy officer who was attending the school. The west wing was being used as quarters for officers with families. There were at least fifty children in the west wing divided over four floors. John's family lived on the second floor.

On June 27, 1948, a Sunday, John and played outside and then later in the afternoon rode up in the elevator together with his playmates Bobby Masonheimer and Danny Smith--also sons of officers living in the west wing--and Danny's father, Warrant Officer Smith. The Smith family was the only one that had quarters on the fifth floor and John often went there to play with Danny. They left the elevator at the fourth floor, the highest floor served by it, and there saw in the hall near the windows a pile of furniture and mattresses near which they had to pass to mount the stairway to the fifth floor. Danny and his father continued up but John and Bobby remained behind to play on the pile. John testified that one of the mattresses was lying on the furniture slanted in such a way that the boys could slide down in the direction of the stairs, one was on the floor on which they could jump and the top one slanted partly down in the direction of the window. When during the playing John was on the top mattress he accidentally tumbled backward towards the open window behind the pile, the screen in it gave way, and boy and screen fell down into a patio. John was seriously injured. There was evidence that the screen was in a weakened and defective condition, but on appeal no negligence is predicated on this condition independent from the fact that the pile of furniture and mattresses, attractive to children, was near the unprotected, open window.

Appellant contends in the first place that it could not be held liable on the theory that it placed in a hall where children invitees were known to pass a pile of furniture attractive to children in a location which would be dangerous if they played there, because there was no evidence that any of its employees or agents placed it in that manner. To the contrary, the janitor Marie, the only one who gave evidence concerning the furniture as it was prior to the time John saw it, testified that on the preceding Saturday afternoon on which he worked until 4:30 he found in the hall of the fourth floor two iron bedsteads taken apart with two springs and two mattresses. He put the bedsteads in the storeroom on that floor but, as there was no room for the mattresses and springs, he put them nearby leaning against the wall. He did not put anything else near the window. When he came there again on Wednesday (after the accident) there was more furniture and it was not placed in the same way. He often found furniture of the hotel in the halls because Navy families put it out of their rooms when they brought in furniture of their own. The storerooms were full. The pile remained in the hall until Wednesday when room for it was made in the storeroom. However it was shown that at a prior trial of the case the witness, over and above testimony to the same effect as that at the present trial, had also testified on cross-examination: 'Q. Isn't it true, Mr. Marie, that on Saturday, the 26th of June, 1948, you were moving furniture from the officers' rooms to the storeroom, in room A? A. Yes.

'Q. Isn't it true you piled the furniture between the window and the storeroom as shown in Plaintiff's Exhibit 3-A. A. Yes.' The witness contended at the trial that he had misunderstood the question and that the answers were not right. He was further impeached by testimony of Lieutenant Owen Roberts, father of plaintiff, to the effect that when in his presence the attorney of his son discussed the circumstances of the accident with Marie in July, 1948, Marie stated that he had placed the furniture between the storeroom and the window on the day preceding the accident without making any qualification and further that he frequently put furniture, there until he could put it in the storeroom. Under those circumstances the jury could disbelieve Marie's main testimony and taking into consideration that the moving of furniture belonged to Marie's task as a janitor, that the furniture was piled up near the storeroom where such furniture was normally stored by defendant, and that Marie finally removed it after the accident, it could infer that Marie had placed it there.

Appellant further argues that a motion for a directed verdict made by it should have been granted because plaintiff when playing on the pile of furniture was using it for an unintended and unpermitted purpose and therefore became a trespasser or licensee to whom defendant owed no duty except to refrain from over or intentional acts not here involved.

This rule has expressly been held inapplicable to infant invitees attracted by dangerous objects in Crane v. Smith, 23 Cal.2d 288, 300, 144 P.2d 356, 363. In that case our Supreme Court affirmed the award of damages to a three year old child for injuries received when she placed her finger in a coffee grinder in a market where her mother was purchasing groceries. The court said: 'The rule relied upon by the appellant, however, has no application to the facts of this case. At the time of the injury, the coffee grinder was on an aisle in a portion of the store open to business visitors. To say that a three-year-old girl accompanying her mother was such a visitor as she stood in front of the machine but a trespasser when she followed a childish impulse to put her hand on or in the fascinating red contrivance which made such interesting sounds would be to extend the doctrine of the cases denying compensation to one who has exceeded the scope of his invitation beyond their logical scope. Moreover, such reasoning would nullify the land occupier's duty to keep his premises free of natural or artificial conditions which involve an unreasonable danger to his business visitors when he has reason to believe that they will not realize the risk involved in the condition. Certainly, evidence shown by the present record justifies a finding that the child's act was one which a reasonably prudent person should have anticipated and guarded against.' And further 23 Cal.2d on page 301, 144 P.2d on page 364: 'The childish propensity to intermeddle was the characteristic which the appellant should have taken reasonable precautions to guard against.' To the same effect is Kataoka v. May Dept. Stores Co., 60 Cal.App.2d 177, 140 P.2d 467, in which case it was held that an action of a four year old child, who accompanied his mother to a department store, for injuries received when he inserted his hand under the 'combplate' of the store's escalator, should have gone to the jury. Appellant's contention that said two cases represent an exception to the general rule and are restricted in their application to situations involving dangerous machinery is without merit. Neither the language nor the rationale of said decisions presents any ground for such restriction. They are based on the general principle that the person in possession of premises must take such precautions for the safety of his business invitees as are reasonable under all the circumstances, considering their relation, the burden of the interference with his own affairs and the danger to the invitees to be anticipated, and that special caution is required in behalf of invitees of immature age whose inability to appreciate and propensity to ignore certain dangers he ought to consider. In this respect it can make no difference in principle whether the owner of a shop or hotel places within the...