*1 any showing absence of averment the relation between damage, fraud and the no count of the second cross- amended complaint states facts sufficient to constitute cause of action. (Maynes Angeles Co., Mesa Land Cal.2d 589-590 109].) says
Littman the demurrer have should not been sustained without amend, leave to an given that he should have been opportunity amend again. opinion Mr. Justice Fox in his on appeal the former specifically told Littman he had what do to state a cause action. reversal, After the Littman filed a cross-complaint first amended insufficient. was A demurrer was again sustained it and given he opportunity to correct the deficiencies. He then filed the second cross-complaint amended and still failed to advantage of take what he opinion had been told in the appeal. Ap- the former parently could he not. The court did not abuse its discretion sustaining the demurrer to the second amended cross-com- plaint without leave to amend.
Affirmed.
Shinn, J.,P. (Parker), Wood J., concurred. petition A for a rehearing January was denied 3, 1958, appellant’s petition hearing Supreme Court February denied 5, 1958. No. 9120. Third Dist. Dec. 9,
[Civ. 1957.] VINETTA DANISAN, Appellant, v. CARDINAL GRO STORES, (a
CERY INC. Corporation), al., et Re spondents. *2 Ray Appellant.
C. Robinson and Ronald for G. Cameron Fuidge Rich, & Dawson, Dawson, Jr., Charles and Peters C. Respondents. & Peters for
PEEK, presents appeal judg- This record J. from injuries damages ments based orders of nonsuit for for slipped shop- sustained fell when she while ping in Marysville. the Plumas Food Market The motion Rose, nonsuit was denied as to the defendant Manuel and thereafter action prejudice was dismissed without as to him. building in which the accident occurred was leased
to the three Grocery defendants—Cardinal Inc., a Stores, corporation, referred to herein as “Cardinal”; Mario Del Hugo Del Pero and Pero, Mondon, doing Gus business as Del Meats, Pero-Mondon hereinafter referred to as “Del Pero-Mondon”; and Manuel Rose. The gro- defendants sold meats, ceries, respectively. Each defendant had particular a lease which covered a area the building and *3 provided among things that the lessee should have right ingress egress . . the of in, and to, upon, through parts portions and over all and of property may said as be necessary carry on operate particular . . . de- [the partment] given for which this lease is and made, and other may as supplied conveniences furnished and in general for the premises said use of all tenants hereof and/or patrons of the thereupon.” business conducted occupied
The defendant Del northerly Pero-Mondon the portion building. display of the A meat counter extended from the front building. to the fear of the Behind the meat-cutting refrigerated counter was a age as well room, as stor- portion department. rooms for that The center building grocery Storage space was devoted to the area. for department westerly this at building was the side of the produce and at the southeast corner thereof. The area was southwesterly in located the corner of the building. Imme- diately produce to the of parti- east the area was 5-foot ; nothing produce tion of however on the north side the area prevented passage grocery free it and the between area. The two the or customer entrances were at west front of the opening one into the area and building, the other produce into the area. 2055 of as witness under section
When called an adverse Procedure, manager of the defendant the Code Civil parking space front that there in Cardinal testified was building by which was used the all three the customers for only through entrance was that the customers defendants; doorways that there was no previously noted; the two indication of division of the line, partition other visible that there was free movement from departments; one three paid department for other; that customers each ar- to the employees the purchased but that the at ticles checkout stands purchased carry any any from three; out article building reading sign on the was neon “Plumas there purpose economy for the Market”; Pood three heading under usually advertised the common defendants separate Pood boxes in the “Plumas Market” ads for paid for defendant, space; and each its own each cooling heating building, well cost of as the prorated among sign, was maintenance three lessees; imaginary line in maintaining followed that each lessee in area which its con- keeping clean the business was in although department the area front the meat ducted, swept by employees of always Cardinal and never Pero-Mondon; Del and that it was employees of to their departments three have the mutual benefit the same people the more attracted to the building premises, in that for department. business each greater the volume Rose, defendants, Hugo Pero and Manuel Del who were like- general 2055, in under section testified the same wise called manager. Arnoldy, the Cardinal addi- as Mr. Rose effect helped wife and him tionally that his son testified day swept of the accident he had that on store; p. his approximately m.; at wife had produce area store; that he then left the took over checkout previously restocking and helping and that his son shelves stand; the customers. He fur- carry groceries out *4 parking policed that the lot and sidewalks were ther testified employees only of Cardinal who also were the by the solely premises. opened and closed the who persons her enter- it was intention testified plaintiff The Actually departments. all three shop in to store ing the area where went to the Cardinal meat, then bought first she finally and went to groceries of purchases certain she made purchases at making her there While produce the section. pre- substance, slipped on some p. m., she 4:30 approximately sumably an onion skin, injuries and suffered the for which sought damages. she point where in the she fell was produce main aisle of the nearly opposite of area and one the two customer building. entrances to the (2d in
As noted ed.) 78, page Prosser Torts section 458, what the refers to as the of author “area invitation” vary will of the the He course circumstances of case. further notes that the to invitation extends the entrance the property and to exit the purpose a safe after brought concluded, has the invitee is extends to all it parts premises purpose may reasonably to which the expected be take in sec Torts, to him. And Restatement tion 343, page determining it the is said . . area included in a the invitation, business the nature of business to be of great importance.” transacted is In line general with the as our stated, rule courts have held: proprietor only “The invitation of a parts extends not to all premises the patron expressly which the use, is invited to parts to also such he or impliedly she is to invited enter, and the portions invitation also extends to those premises invitee, where the under circumstances conditions of invitation, naturally likely his go.” to (Gastine Ewing, Cal.App.2d 131, P.2d 266].) The court therein further held the determination of “. . invitation, express . whether the implied, part included that premises injury where the generally occurred is not one of contrary, law. On it usually a question of fact for the determination of the jury.” (P. court or 141.) argue, however,
The defendants that even if it could they plaintiff produce be found that invited use particular as their own departments, market well never at accident she theless the time had concluded her purchases of had groceries, meats no intention of re departments, turning acting to those she was then Rose. solely for the benefit herself and Furthermore, since occupied they right had no enter the area an same, they duty to clean the owed no produce shopping area. agree while she We cannot arguments. Although plaintiff with such testified that she completed purchases groceries had her meat and and that buying completed would have pur she yet pose building, for which entered it she could not had, of law that she be said as matter those reasons, *5 838 shop the to be the the
ceased invitee of butcher in- broad department since it obvious that it such is the into had her to come vitation that been extended to the in- building purposes the hold the jury could acceptance through upon the and of her entrance vitation in her mind premises merely had not been exhausted because further at the moment she fell she did not intend to make purchases. appear
From it here, the record would case America, Cal.App.2d of Woodard Bank v. joint the 1018], P.2d it would be difficult to attribute to by operation any purpose defendants than that the they their concerted action intended to and did invite public generally patronize the Plumas Food Market such; occupied that the invitation was not limited area by any others, one to the defendant exclusion contrary to the was an by invitation all defendants and portions premises plaintiff to all extended where likely shop. entirely conduct was with the Such consistent gave lease of each to him right defendant which to use open space all the in the market in common the other In defendants. fact such use was essential to the defendants’ common, plan operation over-all it hence could be deliberately found knowingly furthered defendants browsing ordinary shopper. habits of the equally un argument defendants is The second Amship Corp., Biondini 81 Cal. In the ease of tenable. 94], made. App.2d similar contentions were 751 [185 brought plaintiff, invitee, action There the a business an personal injuries. against The trial several defendants motion for a nonsuit and granted court defendants’ reviewing appealed. reversing In the orders of nonsuit the right to main ownership legal lack of or held that the court repair important, conclusive; while is not property, tain or might expressly impliedly adopt property that one or it, if they do, others to use another and invite duty to exercise reasonable invitor owes to such invitee property is safe. The court then con care to see that they not had done so was a cluded whether or jury. expressed equally applicable is for the The rule therein present to the facts in the case. impose liability
And true that to for in lastly it is due to the invitee condition by an juries suffered . must have either or . actual con the invitor premises, knowledge dangerous structive condition have been ordinary able the exercise of care to discover condi if tion, him, known to involving he should realize as premises. negli unreasonable risk on his His invitees gence such cases founded his failure to exercise *6 ordinary remedying care in the defect after he has discovered (Hatfield Levy it. . . .” Brothers, v. 18 Cal.2d 806 841]; Safeway P.2d also Hale v. Stores, Inc., see 129 [117 Cal.App.2d 124, 118].) 128 P.2d But as the court [276 question . held, there also . whether the condi injury tion long which caused had existed so as to be by discoverable the store owner within a reasonable time is jury.” (P.807.) for the Again, Hag in Louie v. strom’s Food Inc., Stores, Cal.App.2d 601, 607 708], P.2d [184 question court held: “It generally is a of fact jury for the to whether, under all the circumstances, the defective long condition enough existed so a reasonable man exer cising reasonable care would have discovered it . . . [and] person operating a a vegetable store in the ordinary exercise of care must vigilant exercise a more out operator types look than the of some other of business where danger things to falling the floor not is so obvious.” Safeway (Hale Inc., Stores, supra.) v. necessarily
It follows that when the evidence in the instant light case is viewed in well-established rule rela (Blumberg to tive nonsuits & Incorporated, M. T. 1]), Cal.2d 226 and the rules heretofore forth, set ample there was evidence to warrant submission of the cause jury. to the judgments are reversed.
Sehottky, J., concurred. DYKE,
VAN J.P. I dissent. think we I do not reach the of the liability of Cardinal and Del Pero-Mondon for the condition of the floor produce market in far so as liability predicated is the leases and the business up relations set among the lessees. plaintiff I prove think the failed to a sufficient of negli- case part anyone. gence on the The liability possessor of a herein land—and I refer Cardinal, to Del Pero-Mondon and bodily harm Rose—for caused to business visitors, can by quoting from well stated Restatement of Torts, Law of 343: section bodily subject liability harm possessor
“A of land to or artificial condition by caused to a natural business visitors if, only if, knows, or the exercise reason- thereon he him, discover, which, if known able care could the condition to them, risk to involving he realize should unreasonable or without permits them to remain . . . invites enter reasonably the condition exercising reasonable care to make adequate to give warning enable them avoid to safe, or a the harm. ...” though question of generally it is a
Even fact as to whether out in negligence this, made cases such as has been neverthe- showing by must be a factual less there from reasonably jury infer that can the conditions of way, Putting proof it another liability if the ex- existed. foreign slipping than to show no further a matter tends possessor prima liability facie case land on the floor out. In there is not made such case noth- invitees has been jury. ing go to the following the evidence here Appel-
Under shown: having at the meat counter shopped lant, grocery, walking area and, into the normally, walked went *7 part of directly to that area the south where carrots were up picked bunch displayed. carrots; There she a of then, bag carry them, put a in which to wanting to obtain she bag way toward the rack. down walked On the carrots and She slipped and fell. said the time she she had there a matter of a produce area was few seconds. A been in the in area for a minute Riggs or two was Doctor nothing fall. He saw on floor appellant before he saw of only other the accident was witness before fall. 2055 section and testified that he under was called Rose, who 30 4 some 20 or minutes o’clock, about swept floor had sweep- the floor was clean after accident, and before appellant fell. There nothing on it before ing he saw and Rose that it was shoppers in the area. said of a number were he and his period, rush nor a period a slack neither carrying parcels purchases and checking out busy clerks were only testified three witnesses All cars. parked to appellant slipped floor after on the they found thing heel, by her left which apparently mark, made skid was a inch quarter of an wide. long and a inches 6 to 10 about matter vegetable about piece of a small there was her heel On of dollar. a quarter aof the size While exact “the time the condition must exist it before should, in the exercise of reasonable care, been have dis covered remedied, cannot fixed, be because, obviously, it according varies to the circumstances” per “a while son operating a vegetable store in of the exercise ordinary must vigilant care a more exercise outlook than the operator of other types some of danger business where of things falling to the floor (Louie Hag is not so obvious” Stores, strom’s Food Inc., Cal.App.2d 601, 708]), dealing lapse nevertheless we are a long of time enough to afford a reasonable inference that that time within possessor ought to presence. have course, discovered its Of may while proved this interval of time by circumstantial any well as direct proved, evidence like fact to be proof lapse nevertheless there must be some of time be jury anything fore a has base an inference that negligence failing in (There to discover occurred. is in this case proof no knowledge nothing actual from which actual knowledge inferred.) could be thisOn of the interval Safeway time I think the ease Stores, Inc., of Hale v. majority opinion, goes possible cited as far it is go submitting jury legally affording a set of facts as an basis for But there in that inference. case at least proof though was, definite short it time, interval circumstances, further from which it could be inferred that a longer elapsed vegetable interval time had after the matter on dropped had the floor. been plaintiff proved
In this case nothing more than that she slipped foreign matter and fell. On what then can a trier any fact base an inference of considerable lapse of time at all? The last customer appellant ahead of may have dropped only it. may passed Seconds have appellant before nothing I there ground think affording fell. for the trier to embark the inquiry fact as to whether or not a elapsed to support sufficient time had an inference of negli- *8 gence. proof I know no case where such as was offered in the case has been declared sufficient to sustain a verdict. appeal
While briefs herein mainly have been confined liability a discussion of Cardinal and Del Pero- liable, Mondon if Rose was nevertheless the motions for non- grounded proof suit also were want of negligence therefore, course, this court cannot judgments reverse negligence based orders nonsuit unless was shown. jury case for the appellant make a I think the failed therefore, I affirm and, against any the defendants judgment. January 1958, 7, rehearing denied for a petition A to read as modified judgment were opinion opinion that the was of the J., P. printed Dyke, Van above. for a hear- Respondents’ petitions granted. petition should be February 5, 1958. Supreme were denied ing by the Court peti- opinion that the J., were McComb, Spence, J., and granted. tion should 9156. Third Dist. No. Dec. 1957.]
[Civ. Appellant, v. ALBY ROBINSON, Plaintiff GRACE V. al., BYRD et al., Respondents; et HUGH G. FELCH Appellants. Cross-Defendants