Speece v. Browne

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; BRAY, P. J., and SULLIVAN
• Citation: 40 Cal.Rptr. 384,229 Cal.App.2d 487
• Decision Date: 02 September 1964
• Parties: Kathryn Mae SPEECE, Deceased, by Henry Speece, Special Administrator, Plaintiff and Appellant, v. Erma Mae BROWNE and James Browne, Defendants and Respondents. Civ. 21227.

Page 384

40 Cal.Rptr. 384 229 Cal.App.2d 487 Kathryn Mae SPEECE, Deceased, by Henry Speece, Special Administrator, Plaintiff and Appellant,
v.
Erma Mae BROWNE and James Browne, Defendants and Respondents. Civ. 21227. District Court of Appeal, First District, Division 1, California. Sept. 2, 1964.

Page 385

[229 Cal.App.2d 488] Morgan & Moscone, San Francisco, for appellant.

Ropers, Majeski & Phelps, Redwood City, for respondents.

[229 Cal.App.2d 489] MOLINARI, Justice.

In this action for personal injuries allegedly sustained by plaintiff as a result of a fall while in the home of defendants, plaintiff appeals from the judgment entered after a jury verdict in favor of defendants and from the order of the court denying her motion for judgment notwithstanding the verdict. ¹

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Question Presented

The sole question is whether there is evidence from which the jury could have found plaintiff to be an invitee.

The Record

Plaintiff, Kathryn Speece, (hereinafter referred to as plaintiff), now deceased, ² was the mother of defendant Erma Mae Browne and the mother-in-law of defendant James Browne (hereinafter referred to as defendants). On Sunday, September 13, 1959, she arrived at defendants' home to cook dinner for them so that they could attend an afternoon baseball game. Plaintiff testified that she visited defendants an 'awful lot on Sundays'; 'But this Sunday I cooked dinner for them. That's the reason I came over. * * * So they could go to the ball game. * * *' It was a family custom for plaintiff and defendants to have Sunday dinner together as defendants' house, and it was not 'unusual' for plaintiff to cook the dinner.

During the afternoon of the day preceding plaintiff's fall, defendant James Browne had waxed both bedrooms located in the upstairs portion of the house. After applying the wax, he used an electric drill with a sheepskin buffer on it in order to polish the floors. Upon completing the polishing, Mr. Browne requested his wife to inspect his work, at which time [229 Cal.App.2d 490] she informed him that the floor was too slippery. Mrs. Browne testified that when she stepped on the floor she slipped but did not fall, and at that time she told her husband that the floor was too slippery and that it was too dangerous. The slippery condition was not corrected until after plaintiff's fall.

On the day of the accident plaintiff was driven to the house by Mr. Browne. Defendants did not inform plaintiff that the floors had been waxed the day before, nor were there any signs showing that the floors had been waxed. After defendants had departed for the baseball game, plaintiff went upstairs, for the first time on that day, to hang up some clothing. Upon entering a back bedroom, which was one of the rooms that had been waxed the previous day, she slipped and fell. As a consequence of the fall, plaintiff sustained a fractured left hip from which she never recovered.

After the trial, and prior to submitting the case to the jury, plaintiff made a motion for a directed verdict, which motion was denied. The trial court refused to give plaintiff's proffered instructions that she was an invitee and defining the landowner's duty to an invitee, but instructed on the duties of a landowner toward a licensee. The jury returned a verdict for defendants.

Applicable Law

The principal issue presented here is whether plaintiff was an invitee or a licensee. It is clear that the trial court concluded as a matter of law that plaintiff was not an invitee. Plaintiff claims that this was error. ³ It is plaintiff's contention that the evidence established as a matter of law that she was an invitee, but that in any event, it was a question for the jury whether she was an invitee or licensee.

Whether one is a licensee or an invitee is ordinarily a question of fact. (Bylling v. Edwards, 193 Cal.App.2d 736, 739, 14 Cal.Rptr. 760; Cain v. Friend, 171 Cal.App.2d 806, 808, 341 P.2d 753.) Accordingly, the issue before us is whether there is evidence from which the jury could have found plaintiff to be an invitee. We have concluded that the evidence would support such a finding.

'It is the purpose for which a person is upon the premises of another which renders him an invitee rather than a licensee.' (Popejoy v. Hannon, 37 Cal.2d 159, 169, 231 P.2d 484; Bylling v. Edwards, supra, 193

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Cal.App.2d p. 740, 14 Cal.Rptr. 760; Cain v. Friend, [229 Cal.App.2d 491] supra, 171 Cal.App.2d p. 808, 341 P.2d 753.) 'As a general rule, if that purpose is one of common interest or mutual advantage the person is considered an invitee while a licensee is inferred where the object is the mere pleasure or benefit of the visitor.' (Ashley v. Jones, 126 Cal.App.2d 328, 332, 271 P.2d 918, 920; Smith v. Kern County Land Co., 51 Cal.2d 205, 208, 331 P.2d 645; Bylling v. Edwards, supra, 193 Cal.App.2d pp. 739-740, 14 Cal.Rptr. 760.) It is also established that the gratuitous nature of the services does not militate against the performer's status as an invitee if the services are for the benefit of the occupant of the premises. (Cain v. Friend, supra, 171 Cal.App.2d p. 809, 341 P.2d 753; Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 409, 313 P.2d 192.) Even where the benefit to the occupant is intangible the one rendering services may rely upon them to establish his status as an invitee. (Edwards v. Hollywood Canteen, 27 Cal.2d 802, 809, 167 P.2d 729; Cain v. Friend, supra, 171 Cal.App.2d p. 809, 341 P.2d 753.)

The 'common interest or mutual advantage' required to make one an invitee was found in the following cases. In Laidlaw v. Perozzi, 130 Cal.App.2d 169, 278 P.2d 523, the plaintiff was a cohostess at a party which she and the defendant were giving at the latter's home to which each had invited her friends and of which they shared the cost. In Cain, the plaintiff carpenter went to the defendants' home in their absence, but at their invitation, for the specific purpose of performing gratuitous construction work on a room the defendants were building. Similarly, in Fernquist, a churchmember carpenter who was requested to contribute his labor to the construction of a church building was held to be an invitee. And in Edwards, the plaintiff went upon the defendant's premises as a volunteer hostess to provide...