Sulhoff v. Everett
| Decision Date | 12 December 1944 |
| Docket Number | 46546. |
| Citation | 16 N.W.2d 737,235 Iowa 396 |
| Parties | SULHOFF v. EVERETT et al. |
| Court | Iowa Supreme Court |
J. A. Williams, of Council Bluffs, for appellant.
Kimball Peterson, Smith & Peterson, of Council Bluffs, for Louise E. Everett, appellee.
Don H. Jackson, of Council Bluffs, for Bess M. Barnes appellee.
The defendant, Bess M. Barnes, operates a beauty shop in the building owned by the defendant, Louise E. Everett, in Council Bluffs, Iowa. Her lease describes 'The first floor store room and basement in the Everett Block * * *.' It appears that the room is L shaped, fronting on Pearl Street, with the wider portion to the west or rear. A barber has his shop in the same building with the beauty shop along the north and west side of the barber shop. Along the south side of the barber shop and the south rear of the beauty shop there is a windowless room, variously described as a hallway or corridor. At the east end of this hallway there is a small washroom and lavatory with one door that leads directly to the barber shop and another door that opens into the hallway. Near the southwest corner of the beauty parlor there is a door that opens into the hallway and in the hallway there is a stairway leading to the basement with a trap door covering that raises back against the south wall of the hallway. We have some difficulty placing this stairway from the record of testimony. Plaintiff in her statement of facts in her brief states:
'This hallway or corridor was approximately six or seven feet wide north and south by something like twelve or thirteen feet along east and west and near the center of the south side of said hallway was an opening in the floor three or four feet in width and six or seven feet long which opening leads to a stairway to the basement * * *.'
The record reference for this statement is to a paragraph in plaintiff's petition and we cannot find it supported by testimony. However, the statement is unchallenged and all parties seem to agree that the stairway opening was immediately adjacent to if not right in front of the door leading to the hallway from the beauty parlor.
Plaintiff had lived in Council Bluffs for a period of about 40 years. For 4 years she had been a patron of Mrs Barnes' Beauty Shop, going every Saturday to have her hair done. On Saturday, May 9, 1942, she went to the beauty shop and had her hair washed and set, and she testified that 'Mrs. Barnes said that if I would come back on Monday she would comb it out for me * * *.' On Monday, May 11th, she went to her office until about 11 o'clock and then she went to the beauty shop where she told Mrs. Barnes that she was going to a church convention. Mrs. Barnes combed out her hair and plaintiff had a further conversation with her with reference to her coat and she testified it was a warm day and Mrs. Barnes said to her: 'Why don't you just leave your coat and wear your suit?' Plaintiff left her coat at the beauty shop, but returned after the church luncheon to get her coat. She brought a friend with her, Mrs. Bergstrom, whom she had met at the luncheon. She introduced her friend to Mrs. Barnes and asked if Mrs. Bergstrom might freshen her face and if she (plaintiff) could use the rest room. Mrs. Bergstrom was given permission to freshen up and plaintiff testified that in reply to her request to use the rest room Mrs. Barnes said: 'Yes, you may, you know where it is.' Plaintiff also testified she had been to the rest room before. Plaintiff then walked to the rear of the beauty shop, opened the door into the hallway and fell down the stairway and was injured. The trap door was raised at the time, Mrs. Barnes testifying: 'I was making some repairs in the basement.'
In her suit for damages against the tenant Barnes and the building owner Everett for the personal injuries she sustained, the trial court, after the plaintiff's testimony, directed verdicts in favor of both defendants.
I. We need not discuss all the grounds of the motions that were sustained. In so far as the defendant Everett's motion was concerned, it is enough to state that the ruling was correct upon the ground that the evidence failed to show that she retained control over the hallway room or stairway. Plaintiff, in argument, recognizes that such retention of control is necessary before the landlord can be charged with liability. Starr v. Sperry, 184 Iowa 540, 167 N.W. 531. But plaintiff argues the evidence shows joint control. The tenant, Mrs. Barnes, testified: 'I had the beauty parlor and all of the hallway to the south under my lease.' The door from the main room of the beauty shop to the hallway was without lock or latch. She had a cabinet in this hallway. Her lease included the 'store room and basement' and admittedly there was no other way to the basement save through the trap door stairway located in the hallway. The agent of the landlord who rented the store room to her told her that she and the occupant of the barber shop had the use of the lavatory. There is no evidence that the landlord had the right to enter the hallway. The fact that certain meters, for utilities furnished to the defendant Barnes and other tenants of the building, were located in the basement does not raise a presumption that the landlord thereby retained control of that part of the premises.
II. Plaintiff argues that 'the trap door and stairway, as there constructed and being used, constituted a nuisance.' Mrs. Barnes testified that when she rented the premises there was a railing around the stairway just to the edge of the trap door and that she had removed it the day before this accident happened. As was said in Lyman v. Hermann, 203 Minn. 225, 280 N.W. 862, 865:
We agree with the plaintiff's contention that the landlord would be liable for injuries resulting from a defective construction at and before the tenancy began or if the evidence would warrant a finding that the leased premises, because of such construction, would subject patrons of the lessee to unreasonable risk. If a nuisance existed on the premises it was the tenant, who removed the railing and left the trap door open, who created it. The verdict for the defendant Everett was rightly directed.
III. Although the defendant Barnes states in her brief that 'the actual premises upon which plaintiff is alleged to have been injured were not at any time under her control and were not a part of the premises leased and occupied by her,' still she does not argue this proposition. There was sufficient testimony to warrant a jury finding that control over all the premises was in the defendant Barnes. She states in her brief that the 'pertinent and controlling question is whether plaintiff at the time of her alleged injury entered the premises of the defendant as an invitee or a mere licensee.' We agree that this is the principal question upon this phase of the appeal and the principal issue raised by her motion.
For the purpose of defining the relationship existing between one who goes upon the premises of another, and the person in charge of the premises, the courts have called the person who goes upon another's premises a trespasser, a bare licensee, and an invitee.
In Wilsey v. Jewett Bros. & Co., 122 Iowa 315, 98 N.W. 114, 115, we stated:
'* * * it may be stated as a general rule of law that the owner or occupier of real property is under no obligation to make it safe or keep it in any particular condition for the benefit of trespassers, intruders, mere volunteers, or bare licensees, coming upon it without his invitation, express or implied.'
See also Mann v. Des Moines R. Co., 232 Iowa 1049, 7 N.W.2d 45, and the many cases there cited.
As to an invitee the holder of the premises owes the duty of reasonable and ordinary care to avoid injuring him. 45 C.J. 823, sec. 236. We said in Noyes v. Des Moines Club, 178 Iowa 815, 160 N.W. 215, 218:
Of course there is no dispute between the parties here as to the law. The dispute is as to the relationship that existed between plaintiff and the defendant Barnes. The latter argues that plaintiff was a licensee and not an invitee and contends that she was under no duty to keep the premises safe or in any particular condition for the benefit of plaintiff. She arrives at this conclusion by pointing to the cases where a licensee was defined to be one who goes upon the premises of another solely in pursuit or furtherance of the business, pleasure or convenience of the licensee, such as: Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N.W. 99, 27 A.L.R. 579; Printy v. Reimbold, 200 Iowa 541, 202 N.W. 122, 41 A.L.R. 1423; McMullen v. M. & M. Hotel Co., 227 Iowa 1061, 290 N.W. 3; Low v. Ford Hopkins Co., 231 Iowa 251, 1 N.W.2d 95, and Wilson v. Goodrich, 218 Iowa 462, 252 N.W. 142.
Let us first determine plaintiff's status as an invitee or licensee at the time she entered the beauty shop to obtain her coat. Defendant Barnes argues that she was a mere licensee within the general rule that one who goes upon the premises of another with permission, but for his own benefit or pleasure is a licensee. The argument is that because the plaintiff came upon the premises for her coat, and this would be of no benefit to the beauty shop operator, then she is...
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