Murrell v. Handley , 245 N.C. 559 ( 1957 )

96 S.E.2d 717 (1957) 245 N.C. 559

Mrs. Jessie MURRELL
v.
E. L. HANDLEY.

No. 93.

Supreme Court of North Carolina.

February 27, 1957.

Don C. Young, Asheville, for plaintiff.

Harkins, Van Winkle, Walton & Buck, and Herbert L. Hyde, Asheville, for defendant.

DENNY, Justice.

The appellant urgently contends that she was an invitee of the defendant and not a licensee at the time of her injury in his home. The authorities, however, support the view that she was a bare licensee. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408; Money v. Travelers' Hotel Co., 174 N.C. 508, 93 S.E. 964, L.R.A.1918B, 493; Greenfield v. Miller, 173 Wis. 184, 180 N.W. 834, 12 A.L.R. 982; Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002, 1004-1005; Biggs v. Bear, 320 Ill.App. 597, 51 N.E.2d 799; Page v. Murphy, 194 Minn. 607, 261 N.W. 443; Lewis v. Dear, 120 N.J.L. 244, 198 A. 887; Bugeja v. Butze, Sup., 26 N.Y.S.2d 989; Id., 262 A.D. 756, 28 N.Y.S.2d 716; Roth v. Prudential Life Ins. Co., 266 A.D. 872, 42 N.Y.S.2d 592; Restatement of the Law on Torts, Volume 2, sections 330, 331 and 332; 65 C.J.S., Negligence, § 32 e, page 489; Annotation: 25 A.L.R.2d Injury to Social Guest, 598-628.

The appellant further contends, however, if it be conceded that a guest or visitor in a home is only a bare licensee, that since she was engaged in a mission for the benefit of the defendant's wife, at the time of her injury, her status was changed to that of an invitee, citing Thompson v. DeVonde, 235 N.C. 520, 70 S.E.2d 424. The facts in the DeVonde case were substantially different from those in the instant case. Among other things, the plaintiff Thompson, in the De-Vonde case, was a paying quest of the defendant's boarding house. The DeVonde case and others of similar import, cited by the appellant, are not controlling on the facts set forth in the record on this appeal.

It is said in Annotation: 25 A.L.R. 2d 600: "It has generally been held * * * that one who enters upon premises as a social guest will not escape the liabilities of that status merely by performing incidental services beneficial to the host in the course of the visit."

Minor services performed by a guest for the host during the course of a visit will not change the status of the guest from a licensee to an invitee. Annotation: 25 A.L.R. 2d 607; O'Brien v. Shea, 326 Mass. 681, 96 N.E.2d 163.

In our opinion, the evidence adduced in the trial below bearing on the question of negligence was insufficient to justify its submission to the jury, even if the plaintiff had been an invitee. Ashley v. Jones, 126 Cal. App. 2d 328, 271 P.2d 918; Nelson v. Smeltzer, 221 Iowa 972, 265 N.W. 924; Brown v. Davenport Holding Co., 134 Neb. 455, 279 N.W. 161, 118 A.L.R. 423; Greenfield v. Miller, supra.

The fact that a floor is waxed does not constitute evidence of negligence. Nor does the mere fact that one slips and falls on a floor constitute evidence of negligence. Res ispa loquitur does not apply to injuries resulting from slipping and falling on a waxed or oiled floor. Barnes v. Hotel O. Henry Corp., 229 N.C. 730, 51 S.E.2d 180, and cases cited therein.

There is no evidence on this record tending to show that the defendant applied the wax to the floor in an improper manner or that an improper material was used.

It seems to be the general rule that an action will not be sustained against the owner or lessee of a building, founded solely upon the fact that the patron or invitee was injured by slipping on a waxed or oiled floor, where the floor had been waxed or polished in the usual and customary manner and with material in general use for that purpose. Barnes v. Hotel O. Henry Corp., supra.

In Brown v. Davenport Holding Co., supra [134 Neb. 455, 279 N.W. 162], the Court said: "The common use of waxed and polished floors, covered with small rugs, in homes and apartments is a matter of common knowledge. In the instant case the evidence establishes that the appellant knew of such use. They are not inherently dangerous to invitees. In the absence of unusual circumstances and conditions, the maintenance of polished hardwood floors and the use of small rugs in an apartment is not negligence for which the owner is liable to a prospective tenant invited to inspect the premises. * * * Though a polished floor is slippery and light rugs are apt to slide, since such rugs are in common use their use is not negligence, unless there is something unusual about them."

The ruling of the court below is affirmed.

Affirmed.