Opinion
11-17-1958
Vesta COGGINS, Plaintiff and Appellant, v. Irene HANCHETTE, doing business as Tolbert's, Defendant and Respondent. * Civ. 22866.
Stephenson & Yelovich and George M. Stephenson, San Pedro, for appellant. Chase, Rotchford, Downen & Drukker and Henry J. Bogust, Los Angeles, for respondent.
Vesta COGGINS, Plaintiff and Appellant,
v.
Irene HANCHETTE, doing business as Tolbert's, Defendant and Respondent.
Nov. 17, 1958.
Hearing Granted Jan. 14, 1959.
Stephenson & Yelovich and George M. Stephenson, San Pedro, for appellant.
Chase, Rotchford, Downen & Drukker and Henry J. Bogust, Los Angeles, for respondent.
VALLEE, Justice.
Appeal by plaintiff from a judgment for defendant entered on a jury verdict in an action for damages for personal injuries sustained as a result of slipping and falling on the floor of a building undergoing repair. Defendant denied negligence, and alleged contributory negligence and unavoidable accident.
Plaintiff was a training supervisor employed by Pacific Telephone and Telegraph Company, San Pedro office, to supervise and instruct student employees in the handling of long distance telephone calls and toll operating; and was so employed on the day of the accident, September 13, 1954. Defendant was engaged in the business of selling and installing floor coverings, such as linoleum and asphalt tile. A contract was entered into in August 1954 between the telephone company and defendant whereby defendant engaged to remove strips of mascapave linoleum from the concrete floor of a room in the telephone company building, called the 'equipment room,' and cover the entire floor area with asphalt tile. Defendant employed one of her tile mechanics, Roy Burrow, to do the work. He was the only employee of defendant on the premises on the day in question.
The equipment room was located on the first floor of the building, adjacent to and immediately south of the room called the 'training room' in which student employees were instructed in telephone technique by training supervisors. In order to gain entrance into the training room it was necessary to pass through the equipment room from an entrance in the west wall, then through a door located about midway in the south wall of the training room. Except when someone entered or left, the training room door was kept closed. Before September 13, 1954 the floor of the equipment room had a painted cement surface, maroon colored, with two strips of the same color linoleum cemented to the floor.
There is no dispute as to the status of the parties and their relationship, the date and place of injury, or the arrangement of the premises as stated above. However, there is some dispute as to the existence on the day of the accident of the strips of linoleum which had been cemented to the floor to provide walkways to and from the training room door through the equipment room or from or to the center office. Each strip or 'runner' was about 3 feet wide. The greater portion of the 3-foot runner leading to the training room door extended generally in an easterly direction from the equipment room door, with its nearest edge about 3 feet south of the wall separating the two rooms, to a point opposite the training room door where it turned north to the training room door.
Plaintiff and her assistant, Mrs. Marich, testified that when they went to work at 7 a. m. and on going to coffee at 9 a. m. the runner leading to the training room door was in place on the floor, and upon their return from coffee about 9:15 a. m. it was still in place. Mrs. Marich further testified that between 10 and 11 a. m. she went to the lounge for five minutes and noticed then that the runner had been pulled up.
Margaret Everett, training supervisor, and Lerla Mae Peters, one of her students, testified they saw the runner in place about 8 a. m. on the morning of the accident and it was not there when they returned from their relief periods between 10 and 11 a. m.
Except for the 15-minute period between 9 and 9:15 a. m. plaintiff remained in the training room from 7 until 11 a. m. While instructing the students at the switchboard she wore a headset with one earphone and a mouthpiece and stood or sat on a high stool nearby where she could observe them. The students also wore similar headsets. The control operator sat at the switch-board nearest the door, and wore a double headset. For verbal instructions at the table all were seated and no headsets were used. The door to the training room was closed on the day in question. It opened inward into the training room and closed automatically.
Plaintiff testified she was unaware any work was to be done on the equipment room floor; she was not advised by anyone that work was to be done or was being done. She had noticed some sanding had been done when she returned from coffee. No one was working on the equipment room floor, and the runner was in place as she returned to the training room. Between 9:15 and 10 a. m. she heard a noise which sounded like a vacuum cleaner. This noise ceased about 10 o'clock. Sometime between 10 and 11 a. m. she saw a man open the training room door and stick his head into the room for 'just seconds.' She was on the west side of the room; she did not hear him say anything. He did not look in her direction. Plaintiff left the training room for lunch at 11 a. m. Her students preceded her by two or three minutes, without incident. Plaintiff opened the door, took one step over the threshold, slipped, her feet went out from under her, and she fell to the floor, fracturing her right lower arm and wrist. She came to rest in a sitting position, resting on her elbow in some mastic about 4 or 5 feet from the door. As she looked back to see what caused her to slip she saw a 3-inch spot of mastic about 12 inches from the doorway, oblong in shape, with a skid mark through it. It was then she noticed for the first time that the linoleum runner had been removed and, except for a bare strip about 3 feet wide extending from the training room door in a westerly direction in the equipment room, the equipment room floor appeared to be covered with mastic. She did not see any marking on the pathway border.
Defendant's employee, Burrow, testified he arrived at the premises between 8:30 and 8:45 a. m. He had visited there two or three days before and knew what work was to be done and where. By about 9 a. m. he had unloaded the sanding machine, asphalt tile, and necessary tools for doing the job, and was ready to commence work about 9:15 a. m. He knew telephone personnel were using the training room and at that time he opened the training room door, put his head in and said, 'I am going to be working out here, watch your step.' He then pulled his head back and closed the door. He proceeded to remove a 9-inch strip of tile which took about four minutes. The next 45 minutes to an hour he sanded the floor of the equipment room and then took about five minutes to sweep it. About 10:15 a. m. he struck off a 'pathway' with bright blue chalk, 3 feet from the partition wall. About 10:15 a. m. he walked into the training room, stood holding the door knob at arm's length, and spoke to the person he took to be the supervisor (later identified as Mrs. Everett) sitting on a high stool near the switchboard. He informed her that if they had any occasion to leave the room 'to be sure to caution the girls that there was work going on out there.' He saw four or five people in the training room at that time in the southeast area. He did not recall seeing anyone leave or enter the training room from the time he commenced work at 9:15 a. m. until plaintiff came through the door and fell at 11 a. m. After giving this second warning he began spreading the mastic emulsion, starting at the extreme northeast corner, leaving the chalk lines intact. He intended to cover the entire equipment room floor except for the marked pathways before laying the tile. When wet, the emulsion is very slippery. The emulsion was poured from a 5-gallon container onto the floor, a portion at a time, spread with a trowel, and allowed to set for a period of time for the water to evaporate, leaving a sticky brownish substance upon which the tile was to be set. As he applied the mastic he was in a kneeling position, moving back and forth in an easterly-westerly direction, going south, and working along the edge of the pathway. After spreading the emulsion along the edge of the pathway, he continued spreading south until he reached a point about 16 feet from it. He did not see any foreign substance in the pathway when he struck the chalk lines; and during about 30 minutes while he had been spreading the mastic, the pathway was in front of him and within his view most of the time. There were times when he did not look in that direction. He was at a point about 16 feet south of the pathway when he first observed plaintiff standing in the emulsion two feet south of the pathway. He observed the door closing behind her. She appeared to have lost her balance; her feet seemed to be shuffling in the mastic. He jumped up, ran through the mastic, lifted plaintiff and walked her onto the pathway. Before plaintiff fell, he had already covered a substantial part of the equipment room floor with mastic. He did not recall seeing the runner that day and he did not remove it.
Mrs. Marich, the control operator who was working with plaintiff, testified she was directly behind plaintiff as she left the training room to go to lunch and saw plaintiff slip and fall as she stepped about a foot from the threshold into the equipment room. After the fall she observed a spot of mastic with a skid mark through it at the point where plaintiff started slipping. No one had told her of any work going on in the equipment room.
Mrs. Everett and one of her students, Mrs. Peters, testified that when they returned from their coffee break about 10:15 a. m. they noticed the linoleum that had been on the equipment room floor at 8 a. m. and when they passed through 15 minutes earlier had been taken up and the walkway was grayish in color. Neither woman saw any chalk marks bordering the pathway at any time. They observed a man down on his knees as they returned from coffee and saw mastic had been applied to one section of the equipment floor. There were marks or brown tracks up close to the area near the equipment room door. After returning to the training room they did not leave again until after plaintiff was injured. When she heard plaintiff cry out Mrs. Everett looked in the direction of the training room door. Mrs. Marich was going out the door. Both witnesses testified no one came into the training room or said anything to them about work being done in the equipment room.
Plaintiff's specification of error is that the court erred prejudicially in giving two instructions requested by defendant. The first instruction complained of reads: 'You are instructed that an invitee coming upon premises in the process of construction is invited to use the premises in their then condition. 'Put in another way, the invitation is merely to use the premises in whatever condition they are in at the time of the entry.'
In determining whether the instructions are correct we must assume that the jury might have believed the evidence on which the cause of action of plaintiff was predicated, and that if correct instructions had been given on that subject the jury might have rendered a verdict in favor of plaintiff. Clement v. State Reclamation Board, 35 Cal.2d 628, 643-644, 220 P.2d 897.
The jury, at plaintiff's request, was instructed that plaintiff was an invitee as a matter of law.
The relationship between defendant and plaintiff was not that of inviter and invitee. An invitee is one who goes on the premises of another as a business visitor, at the express or implied invitation of the owner or occupant, and in connection with some mutual business interest. Powell v. Vracin, 150 Cal.App.2d 454, 456, 310 P.2d 27; Green v. Menveg Properties, Inc., 126 Cal.App.2d 1, 8, 271 P.2d 544. Plaintiff did not go into the equipment room at either the express or implied invitation of defendant. She was an employee of the telephone company. Her work was in the training room. Her only means of ingress to and egress from the training room was through the equipment room. She was compelled to use that room. She did not use it at defendant's invitation. The duty defendant owed plaintiff was to use ordinary care to prevent plaintiff's being injured as a result of defendant's acts. Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12; Johnson v. Nicholson, 159 Cal.App.2d 395, 324 P.2d 307.
Since, at plaintiff's request, the jury was told she was an invitee, and, at her request, the court gave the usual instruction on the duty of an occupier of property in the conduct of active operations thereon toward an invitee, we consider the first instruction complained of on that theory. With respect to that instruction, plaintiff argues: defendant owed her the duty to refrain from active negligence and to exercise ordinary care to keep the premises in a condition reasonably safe for an invitee in the reasonable pursuit of a purpose embraced within the invitation or to warn her of danger; this duty is not limited to conditions actually known by the inviter to be dangerous but extends also to conditions which might have been found dangerous by the exercise of reasonable care; and that the instruction quoted imposed the duty on defendant of anticipating any and all conditions by reason of defendant's failure to exercise reasonable care to keep the premises in a reasonably safe condition or to warn of danger.
The terms 'negligence' and 'ordinary care' were defined to the jury. The court told the jury that 'negligence' is a relative term and explained what is meant by its being a relative term; gave the test for determining the question of negligence; told the jury that intent is not an essential element of negligence; told them that the amount of caution involved in the exercise of ordinary care varies in accordance with the nature of the act and the surrounding circumstances; gave the standard instruction on the duty of an occupier of property in the conduct of any active operations thereon toward an invitee; and told the jury that under certain circumstances the law conclusively presumes that the occupier of property had knowledge of a dangerous or defective condition.
This series of instructions was followed by the first instruction, of which plaintiff complains. We think it was not error to give the instruction complained of. It has long been the rule in this state that an invitee to a building in the process of construction is invited to use the building in its then condition, and that the same rule applies to a building under-going repairs. Allen v. Jim Ruby Construction Co., 138 Cal.App.2d 428, 434, 291 P.2d 991; Nagle v. City of Long Beach, 113 Cal.App.2d 669, 671, 248 P.2d 799. The instruction given on the duty of an inviter to an invitee is a correct statement of the law. Raber v. Tumin, 36 Cal.2d 654, 658, 226 P.2d 574; Curland v. Los Angeles County Fair Ass'n, 118 Cal.App.2d 691, 695, 258 P.2d 1063.
After the giving of the numerous instructions we have mentioned, the court stated a correct rule of law applicable to the facts: that an invitee coming upon premises in the process of construction is invited to use the premises in their then condition. This instruction must, of course, be read with all other instructions given. Thus, after telling the jury that it was the duty of an occupier of property to use ordinary care to avoid injuring an invitee; to use ordinary care to keep the premises in a condition reasonably safe for the invitee or to warn of danger where known or discoverable by the exercise of ordinary care; and that in the absence of appearances that caution her, or would caution a reasonably prudent person to the contrary, the invitee has a right to assume that the premises are reasonably safe for the purposes for which the invitation was extended, and to act on that assumption; the court properly told them that the invitation is to use the premises in the condition they are in at the time of the entry. The giving of this instruction did not tell the jury that an inviter does not owe an invitee the duties stated in the immediately preceding instructions. Neither did it tell the jury that it was the duty of plaintiff to anticipate any and all conditions by reason of defendant's failure to exercise ordinary care to keep the premises in a reasonably safe condition or to warn of danger, as she argues; nor does it state an exception to the duties owed an invitee by an inviter. While the court used the phrase 'premises in the process of construction,' and the premises here were not in the process of construction but in the process of repair, we do not think the jury could have been misled. Since the jury was instructed at plaintiff's request that she was an invitee as a matter of law, she may not complain of an instruction on the duties of an invitee notwithstanding the relationship between defendant and plaintiff was not that of inviter and invitee.
We find nothing in Sullivan v. Shell Oil Company, 9 Cir., 234 F.2d 733, cited by plaintiff, contrary to the views we have stated.
The second instruction complained of reads: 'No inference of negligence on the part of the defendant arises from the mere proof that the plaintiff fell while crossing the 'path portion' of the floor, or from the mere proof that the 'path portion' of the floor was slippery, in the absence of proof that slippery or dangerous condition of the 'path portion' of the floor, was created by or known to the defendant.'
This instruction was clearly erroneous. The correct applicable rule is stated in Hatfield v. Levy Brothers, 18 Cal.2d 798, at page 806, 117 P.2d 841, at page 845: '[T]he owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.'
Also see Frank v. J. C. Penney Co., Inc., 133 Cal.App.2d 123, 125, 283 P.2d 291; Jones v. Hotchkiss, 147 Cal.App.2d 197, 202, 305 P.2d 129.
The Restatement says: 'A possessor of land is subject to liability to others who are privileged to enter it for a public or private purpose, irrespective of his consent, for bodily harm there caused to them by his failure, after he knows or from facts within his knowledge should know of their presence on the land, to conduct his activities thereon with reasonable care for their safety.' Rest., Torts, § 346.
The giving of this instruction was, under the facts of this case, prejudicial error. The instruction omitted the vital element that even if Burrow did not create the condition the jury might infer negligence on the part of defendant if the dangerous condition of the pathway should have been discovered by the exercise of ordinary care. And it was in irreconcilable conflict with the standard instruction given on the duty of an occupier of property in the conduct of active operations thereon toward an invitee. It is impossible to tell which of the conflicting rules was followed by the jury. The case is a close one. There was evidence from which the jury could have found that plaintiff exercised ordinary care in proceeding out of the training room into the equipment room; that she had no knowledge that the linoleum runner had been removed; that she did not see the mastic in the pathway and was not negligent in not seeing it; that Burrow removed the linoleum; that he did not mark the pathway, as he stated; that he knew the employees walked back and forth along the strip where the linoleum had been; that he allowed mastic to flow onto the pathway, or that by the exercise of ordinary care he should have discovered its presence thereon; that he did not warn plaintiff; and that his negligence was the sole proximate cause of plaintiff's slipping and falling. The jury could have concluded the testimony of Burrow was unworthy of belief. The contract between the telephone company and defendant, in evidence, expressly provided that defendant remove and replace the mascapave linoleum. He visited the premises two or three days before the accident and knew what work was to be done and where. He was the only employee of defendant on the premises the day of the accident. No other person did any work in the equipment room from the time he arrived until plaintiff fell. The evidence is uncontradicted that the mascapave linoleum runner was on the floor as late as 9:15 a. m. Yet Burrow denied the runner was on the floor when he arrived, and testified he did not remove it. The jury could have inferred he removed the runner and marked the pathway on the edge of the location where it had been laid.
'Where, as here, the error consisted in instructing the jury as a matter of law on a question that is one of fact on conflicting evidence, and a determination favorable to the losing party might have been made if the error had not been committed, that error is prejudicial.' Clement v. State Reclamation Board, 35 Cal.2d 628, 644, 220 P.2d 897, 906. It is a fundamental principle that a party is entitled to a reversal of the judgment because of prejudicial error when the record shows irreconcilably conflicting instructions and it cannot be ascertained on what theory the verdict was returned. People v. Dail, 22 Cal.2d 642, 653, 140 P.2d 828; Westberg v. Willde, 14 Cal.2d 360, 371, 94 P.2d 590; Wright v. Sniffin, 80 Cal.App.2d 358, 363, 181 P.2d 675; Jolley v. Clemens, 28 Cal.App.2d 55, 73, 82 P.2d 51. 'If the statement to the jury of an essential principle of law is materially incorrect, the error is not generally remedied by a correct declaration of the same principle in another instruction.' Wells v. Lloyd, 21 Cal.2d 452, 458, 132 P.2d 471, 475.
We cannot refrain from commenting on the number of instructions given in this relatively simple case. Sixty-two instructions were given: 24 at the request of plaintiff; 18 at the request of defendant; 17 at the request of both plaintiff and defendant; and 3 on the court's own motion. A few appropriate instructions would have told the jury all the law they needed to resolve the facts. Among the instructions given at the request of defendant was one on unavoidable accident. While plaintiff does not complain of this instruction it was manifestly in error (Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500), and the giving of it, together with the complexity and number of the instructions, could not but have confused the jury.
Reversed.
SHINN, P. J., and PARKER WOOD, J., concur. --------------- * Opinion vacated 338 P.2d 379. 1 BAJI 101, 101-B, and 102. 2 BAJI 101-A. 3 BAJI 101-C. 4 BAJI 101-D. 5 BAJI 102-A. 6 BAJI 213-C: 'Toward an invitee it is the duty of an occupier of property in the conduct of any active operations on the property, to use ordinary care to avoid any injury to the invitee, and to use ordinary care to keep the premises in a condition reasonably safe for the invitee in the reasonable pursuit of a purpose embraced within the invitation, but the responsibility of one having control of the premises is not absolute; it is limited to the performance of certain duties defined in my instructions. If there is danger attending upon the entry, or upon the work which the invitee is to do on the premises, and if such danger arises from conditions not readily apparent to the senses, and if the occupant has actual knowledge of that, or if they are discoverable by him in the exercise of ordinary care, it is the duty to give reasonable warning of such danger to the invitee. The occupant is not bound to discover defects which reasonable inspection would not disclose and he is entitled to assume that the invitee will perceive that which would be obvious to her upon the ordinary use of her own senses. In brief, no duty exists to give the invitee notice of an obvious danger. 'In the absence of appearances that caution her, or would caution a reasonably prudent person in like position, to the contrary, the invitee has a right to assume that the premises she was invited to enter are reasonably safe for the purposes for which the invitation was extended, and to act on that assumption. 'Each, the invitee and invitor, so long as he is exercising ordinary care and no circumstance exits that either cause him or would cause a reasonably prudent person in his position, to think differently, has a right to assume that the other is or will be possessed of normal faculties of sight and hearing, and will exercise ordinary care, and he has the right to rely on that assumption. 'Take note also that everything I have said or may say about the duty of an invitor is subject to this overlying principle, that if and when an invitor actually learns that an invitee is in imminent danger of injury, and if, by exercising ordinary care, the invitor can minimize or thwart that danger, his duty is to apply such care to such a purpose.' 7 BAJI 213-K and 213-K-1: 'If a dangerous or defective condition of or on property is created by the negligent conduct of the occupier or his employee acting within the scope of employment, and if the invitee thereafter suffers injury of which such condition was a proximate cause, in any action that the invitee may bring for damages for such injury, the law conclusively presumes that the occupier had knowledge of said condition from the time of its creation. 'When an unsafe condition which causes injury to an invitee has been created by the occupier of the property himself, or by an employee within the scope of his employment, the invitee need not prove the owner's notice or knowledge of the dangerous condition. Such knowledge is imputed to the owner.'