Campbell v. Weathers

Opinion by: WEDELL, J.
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Plaintiff had been a customer of the defendant lessee for a number of years. On Sunday morning, June 4, 1939, between 8:30 and 9 o'clock, plaintiff entered the place of business operated by the defendant lessee as a cigar and lunch business. He spent probably fifteen or twenty minutes in the front part of the building and then started for the toilet. He stepped into the open trap door in the floor of the hallway, broke his right arm and sustained some other injuries.

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The first issue to be determined is the relationship between plaintiff and the lessee. Was plaintiff a trespasser, a licensee or an invitee? The answer must be found in the evidence. A part of the answer is contained in the nature of the business the lessee conducted. It is conceded lessee operated a business which was open to the public. Lessee's business was that of selling cigars and lunches to the public. It was conceded in oral argument, although the abstract does not reflect it, that the lessee also operated a bar for the sale of beer, but that beer was not being sold on Sunday, the day of the accident. Plaintiff had been a customer of the lessee for a number of years. He resided in the city of Wichita. He was a switchman for one of the railroads. He stopped at the lessee's place of business whenever he was in town. He had used the hallway and toilet on numerous occasions, whenever he was in town, and had never been advised the toilet was not intended for public use. When he entered lessee's place of business the lessee and three of his employees were present. He thought he had stated he was going back to use the toilet, but he was not certain he had so stated. None of the persons present heard the remark. He saw no signs which warned him not to use the hallway or toilet. The hallway was the direct route to the toilet. One of lessee's employees testified he had never been told by the lessee or anyone else that the toilet was a private toilet.

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The evidence disclosed appellant had been a regular customer of the lessee for a number of years and that he had used the hallway and toilet about every day he had been in town. He had never seen any signs not to use the toilet and had never been forbidden to use it. That the public had a general invitation to be or to become lessee's customers cannot be doubted.
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Can we say, as a matter of law, in view of the record in this particular case, appellant had no implied invitation to use the toilet simply because he had not made an actual purchase before he was injured?
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The evidence of lessee's own employee was that the toilet was not regarded as a private toilet. The evidence is that it was not used only by the lessor, the lessee, or by lessee's employees. Did the evidence disclose that in addition to the lessor, the lessee and his employees, it was to be used only by customers of the lessee? It did not. The positive and unqualified testimony was: "It was used by everybody, used by the public." Neither the trial court nor this court can alter that testimony. Neither may courts reduce or minimize its significance. On demurrer we are compelled to accept the evidence at its face value, namely, that the lessee provided the toilet facilities for anybody who saw fit to use them. In a densely populated business district such a privilege may have constituted a distinct inducement to bring, not only old customers like appellant, but prospective customers into lessee's place of business.
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But we need not rest our conclusion that appellant was an invitee upon the fact that, according to the unqualified evidence, not only customers but everybody was permitted to use the toilet.

The writer cannot subscribe to the theory that a regular customer of long standing is not an invitee to use toilet facilities required by law to be provided by the operator of a restaurant, simply because the customer had not actually made a purchase on the particular occasion of his injury, prior to his injury. It would seem doubtful whether such a doctrine could be applied justly to regular customers of a business which the law does not specifically require to be supplied with toilet facilities, but which does so for the convenience or accommodation of its guests. Women do a great deal of shopping. They sometimes shop all day in their favorite stores and fail to make a single purchase. Shall courts say, as a matter of law, they were not invitees of the business simply because on a particular occasion they had not yet made a purchase? No business concern would contend they were not invitees unless perchance an injury had occurred. Men frequently, during spare moments, step into a place of business, which they patronize regularly, where drinks, cigars and lunches are sold. They may not have intended definitely to presently make a purchase. They may, nevertheless, become interested, for example, in a new brand of cigars on display which they may purchase then or on some future occasion. Would the owner or operator of the business contend they were not invitees? We do not think so. Then why should courts arbitrarily say so, as a matter of law? It is common knowledge that business concerns invest huge sums of money in newspaper, radio and other mediums of advertising in order to induce regular and prospective customers to frequent their place of business and to examine their stocks of merchandise. They do not contemplate a sale to every invitee. They do hope to interest regular customers and cultivate prospective customers. It is common knowledge that an open door of a business place, without special invitation by advertisement or otherwise, constitutes an invitation to the public generally to enter. Shall courts say, as a matter of law, that such guests are not invitees until they actually make a purchase? We think the mere statement of the question compels a negative answer. Manifestly this does not imply that a trespasser or a mere licensee who enters the premises on a personal errand for the advancement of his own interest or benefit is entitled to the protection due an invitee. In the case of Kinsman v. Barton & Company, 141 Wash. 311, that court had occasion to determine what constituted an invitee, and said:

"An invitee is one who is either expressly or impliedly invited onto the premises of another in connection with the business carried on by that other. . . . If one goes into a store with the view of then, or at some other time, doing some business with the store, he is an invitee."
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Of course, if it appears a person had no intention of presently or in the future becoming a customer he could not be held to be an invitee, as there would be no basis for any thought of mutual benefit. [. . .]

It is true, in the instant case, there was no direct evidence of appellant's intention to make a purchase on this particular occasion. We cannot, however, well ignore the pertinent fact that this appellant had been a customer of lessee of long standing. He had patronized lessee's business for a number of years and had done so whenever he was in town. In view of this record, we think it unreasonable to say, as a matter of law, appellant lost his status as an invitee, simply because he had not actually made a purchase prior to his injury on this single occasion, or because the record did not affirmatively disclose he actually intended to make a specific purchase presently or in the future. There is nothing in the record which remotely indicates appellant had abandoned his practice to continue patronizing the lessee, and his presence there on this occasion is some evidence he had not abandoned such previous custom.

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The order sustaining the demurrers of the landlord and the manager of the building is affirmed; the order sustaining the demurrer of the lessee is reversed.