Weil v. Smith

• Decision Date: 09 May 1970
• Docket Number: No. 45649,45649
• Citation: 205 Kan. 339,469 P.2d 428
• Parties: Verda Eloise WEIL, Appellant, v. Murrill SMITH and Etta M. Smith, Husband and Wife, Appellees.
• Court: Kansas Supreme Court

Page 428

469 P.2d 428

205 Kan. 339

Verda Eloise WEIL, Appellant, v. Murrill SMITH and Etta M. Smith, Husband and Wife, Appellees.

No. 45649.

Supreme Court of Kansas.

May 9, 1970.

Rehearing Denied June 4, 1970.

Syllabus by the Court

1. The duty owed by an owner or occupant of land to a licensee is to refrain from causing him injury from willful, wanton or reckless conduct, while that owed to a business invitee or guest of equivalent status is to exercise reasonable care for his safety.

2. Generally, a person is a licensee, as such term is known to the law of negligence, where his entry upon or use of the premises is permitted by the owner or occupant in control either expressly or by implication, or by operation of law, so that he is not a trespasser thereon.

3. A business invitee, or other invitee of equal status, is one who goes on another's premises at the express or implied invitation of the owner or occupant for the benefit of the invitor, or for the mutual benefit and advantage of both invitor and invitee.

4. Where an invitee is on the premises of another person solely for his own benefit, convenience, pleasure, advantage or interest he is, in the eyes of the law, a licensee.

5. Where the status of a person who has gone upon the premises of another is equivocal because of conflicting evidence and the reasonable inferences which may be deduced therefrom, it becomes the duty of the jury, or other trier of facts to determine whether he is a licensee or an invitee.

6. A court should be careful not to encroach upon the province of a jury when the facts, though undisputed, are such that reasonable persons might draw differing inferences and arrive at opposite conclusions.

7. It is not essential to the creation of an invitee status, that the owner or occupant of land actually receive financial or tangible benefits from the visit itself.

8. In determining the status of a visitor upon the premises of another, the underlying purpose of the visit is of primary significance, and where there is any honest doubt as to the purpose, that issue becomes one for the jury to decide.

9. The record is examined in an action to recover damages for injuries received by plaintiff in a fall on the premises of the defendants, and for reasons set forth in the opinion it is held the trial court erred in entering summary judgment in the defendants' favor.

Charles D. Green, Manhattan, argued the cause, and Richard C. Wells, Manhattan, was with him on the brief for appellant.

John F. Stites, of Rogers, Stites & Hill, Manhattan, argued the cause and was on the brief for appellees.

FONTRON, Justice.

This appeal stems from an action to recover for injuries received when the plaintiff suffered a fall on the defendants' front porch resulting in a fractured ankle. Summary judgment was entered in favor of the defendants on the ground that the plaintiff was a mere licensee at the time of her injury.

The sole question presented on appeal is whether the trial court was correct in entering summary judgment on the premise that the status of Mrs. Weil, the plaintiff, was that of a licensee, since the plaintiff concedes there is no evidence of willful, gross or wanton negligence on the part of the defendants.

A somewhat detailed recital of the facts is required. On the afternoon of November 2, 1965, the plaintiff stopped at the Smith residence for the purpose, according to her own testimony, of picking up some eggs. After a bit of womanly conversation, she inquired if Mrs. Smith had any eggs that day. Receiving a negative response, Mrs. Weil shortly thereafter took her leave. As she proceeded through the door leading to the porch, she stepped on a mat on the porch floor which slipped and gave way, causing Mrs. Weil to fall and break her ankle.

According to the deposition of Mrs. Weil which was before the court, together with the deposition of Mrs. Smith, she had been getting fresh eggs from Mrs. Smith for about a year or so, as and when she needed them, during which time either she or members of her family had gone to the Smith house some twenty-four times for such purpose; that these trips were not made on a regular or weekly basis, but just when the plaintiff was out of eggs; this arrangement originated through a niece of Mrs. Smith, who was getting eggs from her aunt; that she, Mrs. Weil, paid Mrs. Smith thirty-five cents a dozen for the eggs she received; on November 2, the date of the fall, Mrs. Smith had not called her to come and get eggs but she went to the Smith house for that purpose and didn't think she would have stopped there if she hadn't needed eggs that day; that she was stopping after eggs if Mrs. Smith had any.

To some extent Mrs. Smith's deposition coincided with that of Mrs. Weil. Mrs. Smith's testimony was that a family friend brought the eggs to her house as a favor to a widowed farm lady and that she paid thirty-five cents a dozen for them; that her family, her daughters, nieces and sister usually took most of the eggs at the same price she paid and sometimes there would be extra ones that Mrs. Weil would get, sometimes from her niece, Mrs. Lessline, a neighbor of Mrs. Weil, and some five or six times from Mrs. Smith herself; that she never called Mrs. Weil to come and get eggs and did not do so on the day in question; that basically, the eggs were for members of her family but sometimes she would get over supplied when they went on vacation, or when her farm lady would send more eggs than they really wanted; on the day of the accident she and Mrs. Weil talked awhile before the latter asked about eggs and was advised there were none; they talked a few minutes longer and plaintiff then left, with the remark that she was going to pick up her daughter and go on to Fort Riley; that Mrs. Weil was at her house between fifteen and twenty minutes.

Both women agreed they were on friendly terms, occasionally going to bingo parties together and visiting each other's premises when asked; Mrs. Smith said she presumed she was a social friend of the plaintiff.

It is against this background that we are called upon to determine the soundness of the summary judgment entered by the tria court in favor of the defendants.

The principles governing the duty owed by an owner or occupant of land to a licensee or social guest on the one hand, and to a business or public invitee on the other, have frequently been considered by this court and have become well established in this jurisdiction. In general, the duty owed to a licensee is much less onerous than that due an invitee. As to the former, liability is predicated only on conduct equivalent to wilfullness or wantonness; as to the latter, the basis of liability is simple negligence alone. (Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P.2d 920.)

Definitions of 'licensee' and 'invitee', which we deem still to be sound, may also be found within the covers of our reports but, as is so often the case, vexing problems continue to arise with respect to the application of those principles under the facts of specific situations.

Before proceeding further it would be well to point out that the term 'invitee' is used in this opinion in the context of what we have often denoted a 'business invitee.'

It may be helpful to refer at this point to what has been said in previous cases. In Graham v. Loper Electric Co., 192 Kan. 558, 389 P.2d 750, by way of distinguishing the terms licensee and invitee we employed this language:

'A licensee is defined in 65 C.J.S. Negligence § 32a, p. 481 as follows:

"* * * (A)s a general rule, a person is a 'licensee,' as that term is used in the law of negligence, where his entry or use of the premises is permitted, expressly or impliedly, by the owner or person in control thereof, or by operation of law, so that he is not a trespasser * * *' 'An invitee is also defined in 65 C.J.S. Negligence § 43(1), p. 508 where it is stated:

"Broadly stated, an invitee is a person who enters on the premises of another in answer to an express or implied invitation. The term 'invitee' is more fully defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage * * *" (pp. 562, 563, 389 P.2d p. 754.)

Speaking further in the Graham case the court went on to say:

'It may be generally stated that an invitation may be implied if there is some relationship inuring to the benefit of both the injured party and that of the occupier of the premises. (Bessette v. Ernsting, 155 Kan. 540, 127 P.2d 438.)' (p. 563, 389 P.2d p. 754.)

In a more recent case relating to the same topic, Smith v. Board of Education, 204 Kan. 580, 464 P.2d 571, we referred to the opinion in Graham and further quoted from 65 C.J.S. (1966 Ed.) Negligence § 63(41), p. 716, as follows:

"Many cases define an invitee as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage Whether a person entering the premises of another is an invitee depends on the purpose or the nature of business which brings him on the premises. If the purpose of the entry or visit is one of common interest or mutual advantage the visitor is considered an invitee.

"One entering premises on invitation does not enjoy the status of invitee unless the entry is made in connection with the business or purposes of the owner. Only a person who goes on the land for the purpose of carrying on a transaction for the benefit of both parties or the benefit of the owner can attain the status of invitee. To establish an inviter-invitee relationship, there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates. If the invitation...