Speece v. Browne

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; BRAY, P. J., and SULLIVAN
• Citation: Speece v. Browne, 40 Cal.Rptr. 384, 229 Cal.App.2d 487 (Cal. App. 1964)
• 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.

Morgan & Moscone, San Francisco, for appellant.

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

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

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 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 Cal.App.2d p. 740, 14 Cal.Rptr. 760; Cain v. Friend, 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 entertainment for members of the armed forces.

In the following cases the plaintiff's status as a licensee was predicated upon her being on the premises primarily for her own pleasure or social benefit. In Ashley, the plaintiff was injured as a result of slipping on a rug in the defendants' home where she and her husband were guests. There the only claimed mutual interest was discussion of church activity. However, this matter had been thoroughly discussed and the plaintiff and her husband remained over another night for the express purpose of a social gathering with old friends. The accident occurred while the plaintiff was hurrying to make herself ready to receive the guests who were momentarily expected. In Free v. Furr, 140 Cal.App.2d 378, 295 P.2d [229 Cal.App.2d 492] 134, the plaintiff, comanager of a laundry and dry cleaning establishment, went to the defendants' home for the purpose of bringing a cake, as a present, to the defendant wife who was one of her customers. While on the premises she fell and sustained injuries. The reviewing court held that she was a mere gratuitous licensee whose visit was a social one, even though, as the plaintiff started to leave for home, the defendant wife asked her to send her driver for some laundry on the following day. In Bylling, the plaintiff and her husband, close friends of the defendants, were invited to the latter's home for a reception and a family dinner. The plaintiff, entirely unsolicited, helped the defendants' daughter clear the table, then took cookies and coffee into the dining area where the defendants served their guests. When more plates were needed the plaintiff volunteered to go to the garage where they were kept, and, while there, slipped and fell, sustaining injuries. The reviewing court, noting that the activities were similar to those in Ashley, held that the plaintiff was a gratuitous licensee.

The rationale of Laidlaw, Edwards, Cain and Fernquist is that the plaintiff was on the premises with the express or implied invitation and for the sole benefit of the defendant occupier, or for their mutual benefit. The gist of the holdings in these cases is that the defendant received a benefit from the presence of the plaintiff consisting of something more than the intangible benefit conferred by social visitors. The holding of Cain, in particular, is that if a person is expressly or impliedly invited to visit an owner's premises to perform services beneficial to such owner that person is an invitee and not a licensee.

The essence of the holding in Ashley, Free and Bylling is that where the object of the visit is the mere pleasure or benefit of the visitor the person invited is a licensee. In Ashley, the reviewing court, while recognizing that the courts of this state had not definitely decided 'how much of a mutual interest and benefit, aside from mere social interest and pleasure, is required to give a status of invitee to a guest in a home,' was satisfied that a guest who is invited to come on the premises of his host "for social or benevolent purposes" is a licensee and not an invitee. (126 Cal.App.2d pp. 332, 333, 271 P.2d p. 920.) Accordingly, the court was of the opinion that mutual interest in church, lodge, or political activity, without personal gain or benefit, creates, as between the guest and his host, the relation of licensee and licensor because such activity is ordinarily considered a part of common social life. In Free, the nub of the holding is that the purpose of the visit was purely social and the talk about dry cleaning was merely an afterthought and an accommodation to the defendant wife. The thrust of the holding in Bylling is that where the purpose of the visit is social the guest nevertheless remains a licensee even though he performs...