I believe that the opinion herein reaches the correct result in this case but I am unable to concur in that part of the opinion which would overrule the opinion of this court in the case of McMullen v. M. . M. Hotel Co., 227 Iowa 1061, 290 N.W. 3. The facts in that case are so different from the facts presented by the record herein that it is entirely unnecessary to overrule the McMullen case to decide this case and I am firmly of the opinion that the McMullen case was decided on sound principles of law.
In the case of Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240,1242, 1243, 191 N.W. 99, 100, 27 A.L.R. 579, 583, this court states:
"Even though a person is an invitee upon the premises of another, the duty of the owner of the premises to maintain the same in a safe condition applies only to that part of the premises that is appropriated by the owner as a place in which his business is conducted, and the necessary and proper part of said premises reasonably to be used by the invitee to gain access to the portion of the premises used for purposes of business. The invitation, express or implied, to conduct business upon the premises is an invitation to use the premises in the ordinary and usual manner in which business is conducted thereon; and it does not render the owner or occupant of the premises liable for negligence where the invitee is using a portion of the premises to which the invitation has not been extended, either expressly or impliedly, and which the occupant would not reasonably expect the invitee to use in connection with the conduct of business on said premises." (Citing numerous cases.)
The foregoing pronouncement was cited with approval and followed by this court in the case of Knote v. City of Des Moines, 204 Iowa 948, 949, 950, 216 N.W. 52, where, in holding that a plaintiff who fell into an open manhole on the property of the city market could not recover from the city, we stated:
"He was at the place where the public were not expected *Page 406 to go, and was there solely on a mission of his own. The rules of law applicable to the situation in the instant case were reviewed by us in the recent case of Keeran v. Spurgeon Merc. Co.,194 Iowa 1240."
The foregoing pronouncements were followed by this court in the case of Nelson v. F.W. Woolworth Co., 211 Iowa 592, 597,231 N.W. 665. After quoting the language of the Keeran case, hereinbefore quoted, and citing the Knote case, this court quoted with approval from Wall v. F.W. Woolworth Co., 209 Ky. 258,272 S.W. 731, wherein the Kentucky court stated as follows:
"`If the stairway was upon a part of its [the storekeeper's] premises to which the public was not invited, and had no right to go, the company, as to appellant [the customer], owed no duty to have and keep the place safe. The general rule, as stated in Thompson on Negligence, Section 988, is that a merchant is not required to keep his premises safe, but only that part to which his customers are invited. But this duty does not extend so far as to make such an occupant responsible for the unsafe condition of those parts of his premises not intended for the reception of visitors or customers, and where they are not expected or invited to go.'"
This court then quoted with approval from the case of MacDonough v. F.W. Woolworth Co., 91 N.J. Law 677, 103 A. 74, wherein the New Jersey court stated as follows:
"`She [the customer] saw counters with merchandise displayed upon them, one extending down the middle of the store and one down each side, the latter in front of wall shelves of merchandise, with a space for the saleswomen to work between the wall shelves and the counters. Such an arrangement in itself extended no invitation to a customer to go behind these side counters into the space which was obviously for employees, and in a case involving nothing more, there being no evidence of invitation, a court, and not a jury, question would arise.'"
Pursuant to the foregoing authority, this court then stated, in Nelson v. F.W. Woolworth Co., supra, 211 Iowa 597,231 N.W. 667, as follows: *Page 407
"Obviously, therefore, a customer in a store is not an invitee to such portions thereof as are plainly intended for the use of the proprietor and the sales people only. As soon as the customer steps beyond that part of the store meant for the invitee, and enters the space evidently not so intended, he becomes a mere licensee, or trespasser."
In the case of McMullen v. M. M. Hotel Co., supra, 227 Iowa 1068,290 N.W. 7, this court applied the foregoing pronouncements to the facts shown in that case, as follows:
"The telephone was located in a part of the premises to which the public was not invited. Plaintiff relies upon the fact that there was no sign on the swinging door, `Private — Keep Out'. Such a sign was not necessary under the record herein. It was obvious to even a casual observer that the prescription room was a private room and not one into which the public was invited. It was also obvious that the telephone she undertook to use was not a public telephone. The fact that she asked for permission to use it definitely shows that she realized she was undertaking to use a private telephone. In undertaking to step into the prescription room, she stepped beyond the limits of any invitation extended to her as a possible customer of the store, and became a mere licensee."
The principles of law which form the basis for the pronouncement last above quoted are well established and have been repeatedly recognized by this court. For this court to casually overrule them, when such action is not necessary to reach a correct result in the case now before us, would be action with which I cannot concur. Such action would inject confusion into our jurisprudence and would produce nothing but harmful results.
In the McMullen case, the plaintiff entered a private prescription booth to use a telephone. But the same rules of law have been repeatedly applied to the use of toilet facilities. Illustrative cases include Bleich Co. v. Emmett, Tex. Civ. App., 295 S.W. 223; Thalhimer Bros. v. Casci, 160 Va. 439,168 S.E. 433; Hudson v. Church of Holy Trinity, 250 N.Y. 513,166 N.E. 306. And see, also, Hauser v. Chicago, R.I. P. Ry. Co.,205 Iowa 940, 219 N.W. 60, 58 A.L.R. 687. *Page 408
The facts now before us differ from those in the McMullen case in many particulars. Among the more important differences are these: In the McMullen case, plaintiff undertook to enter a part of the drugstore which was obviously not maintained for customers. It was private, for the use of employees only. But here the plaintiff undertook to use toilet facilities that were maintained for customers of the beauty parlor. It seems to me that the case comes squarely within the situation envisioned by the Texas court in the case of Bleich Co. v. Emmett, supra, Tex. Civ. App., 295 S.W. 227, wherein the court stated as follows:
"It is a matter of common knowledge that in the conduct of modern business institutions in cities, it is usual and customary, if not necessary, for those conducting such institutions to keep toilets for the accommodation of its employees and patrons, so that such persons may use them when so required by a call of nature, and that in many large business institutions restrooms are established for the use of patrons. In such cases, if a clerk or other employee or agent of such business were to, when requested so to do, direct a patron of the business to a place where such toilet or restroom could be found, and such patron is injured in going to such place by reason of some dangerous defective condition of the path leading to such place, such condition being known to the owner, or by reasonable care should have been so known, and which was not known, nor by the exercise of ordinary care would not have been discovered by the injured party, the owner would, in our opinion, be liable for such damages as were the proximate result of the act of the owner in maintaining the dangerous condition of the path to the toilet."
Similarly, in the case of Scott v. Kline's, Inc., Mo. App.,284 S.W. 831, 832, the court stated:
"Inasmuch as defendant maintained the toilet in which plaintiff was injured for the use of its customers, plaintiff, in using said toilet, was an invitee, and not a mere licensee. Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Glaser v. Rotschild,221 Mo. 180, 120 S.W. 1, 23 L.R.A. (N.S.) 1045, 17 Ann. Cas. 576." *Page 409
The fact situation which formed the basis for the two pronouncements last above quoted accords with that now before us. The law which the foregoing opinion applies is that which was there announced. But the fact situation in the McMullen case was entirely different. It was the difference in the fact situation which accounted for the application of a different rule of law. Hence it is that it is in no way necessary to now pass judgment upon the McMullen case. Certainly, the decision of the case now before us affords no ground or pretext for overruling the well-settled principles of law which were applied by us in the McMullen case. Also, the Connecticut decision, relied upon by the majority, Ward v. Avery, 113 Conn. 394, 155 A. 502, does not present facts in any way analogous to those in the McMullen case.
MANTZ, C.J., and HALE, SMITH, and WENNERSTRUM, JJ., concur in this specially concurring opinion.