Jenkins v. Brothers , 3 N.C. App. 303 ( 1968 )

164 S.E.2d 504 (1968) 3 N.C. App. 303

Elizabeth L. JENKINS
v.
R. T. BROTHERS and wife, Grace J. Brothers.

No. 681SC319.

Court of Appeals of North Carolina.

December 18, 1968. Certiorari Denied January 31, 1969.

J. Kenyon Wilson, Jr., and Gerald F. White, Elizabeth City, for plaintiff appellant.

Leroy, Wells, Shaw & Hornthal by L. P. Hornthal, Jr., Elizabeth City, for defendants appellees.

MALLARD, Chief Judge.

The plaintiff contends, among other things, that because she supplied dinner for defendants and defendants' scrub woman, she was an invitee in the home of the defendants at the time she received her injury. The authorities, however, support the view that she was a bare licensee. Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717; 6 Strong, N.C. Index 2d, Negligence, §§ 52, 59.

Plaintiff also contends, as the appellant did in Murrell v. Handley, supra, that since she was engaged at the time of her injury in a specific task for the benefit of, and at the request of the femme defendant, her status was changed to that of an invitee, citing Thompson v. DeVonde, 235 N.C. 520, 70 S.E.2d 424.

The following statement by Justice Denny, later C. J., distinguishing Thompson v. DeVonde in Murrell v. Handley, supra, is also applicable in this case:

"The facts in the DeVonde case were substantially different from those in the instant case. Among other things, the plaintiff Thompson, in the DeVonde case, was a paying guest 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 this case plaintiff was performing the minor or trifling service of telling the femme defendant that dinner was ready. The cooking of the meal for the defendants and the scrub woman was also a minor service that each customarily performed for the other. In going upon the premises of the defendants, the plaintiff was neither a customer nor a servant nor a trespasser.

In this case the femme defendant was cleaning house and the plaintiff knew this. The fact that a scatter rug was on the light colored floor of the den where it had not been before does not constitute negligence. There is no evidence as to the condition of the rug prior to plaintiff's fall. The use of a scatter rug on a floor is not negligence. It is not negligence for a person in her own home, while cleaning house, to drop a dark colored scatter rug on a light colored vinyl linoleum covered floor, even though one had not previously been in such location. Plaintiff's own evidence also discloses that if she had been keeping a proper lookout she would have seen the rug on the floor.

In our opinion the evidence was insufficient to justify the submission of this case to the jury, even if the plaintiff had been an invitee.

The ruling of the Superior Court is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.