Montgomery Ward & Company v. Bailey

Decision Date23 October 1959
Docket NumberNo. 7907.,7907.
PartiesMONTGOMERY WARD & COMPANY, Inc., Appellant, v. Mary F. BAILEY, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

William C. Lassiter and Samuel R. Leager, Raleigh, N. C. (James H. Walker, Raleigh, N. C., on the brief), for appellant.

George F. Bason, Raleigh, N. C. (James H. Pou Bailey, Raleigh, N. C., on the brief), for appellee.

Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.

SOPER, Circuit Judge.

This appeal is taken from a judgment of the District Court wherein Montgomery Ward & Company, Inc. was held liable to Mary F. Bailey for injuries suffered when she fell upon the floor of a store maintained by the Company in Raleigh, North Carolina.

The case was tried by the District Judge without a jury. He found that the plaintiff was a prospective customer in the store and slipped and fell by reason of the presence of motor oil on the floor, caused by the manner in which the defendant conducted the sale of motor oil on the premises. Based on this finding and the evidence which showed the extent of the injuries caused by the fall, and the expenses incident thereto, the District Judge found a verdict for the plaintiff in the sum of $5,000.00.

The plaintiff went to the store to make a purchase and was directed to the basement where she learned that the material she sought was not available. She fell and was hurt while she was on her way out of the store to the stairway that led to the floor above and the exit to the street. She was walking in an aisle 4½ to 5 feet wide between a counter on her left and five large metal cylindrical drums, which were placed against the wall and contained motor oil for retail sale, on her right. She slipped on the oil on the floor and fell near the end of the counter and a cross aisle that led to the foot of the stairs. The point at which she fell was about 7 feet from the nearest oil drum.

There was no direct evidence to show how the oil came to be on the floor but immediately after the fall C. H. Crowe, an employee of the defendant, came out of a door to a stockroom located at the end of the aisle where the defendant fell and approached her and said to someone nearby, "I told you to get this oil up", and then asked the plaintiff if she was hurt.

This evidence was not contradicted. The District Judge, however, did not base his verdict on a finding that the defendant had explicit advance notice of the slippery substance on the floor before the accident and was negligent in failing to remove it; he based his conclusions on the ground that the defendant sold and served oil to customers in such a manner as to be likely to create a dangerous condition in the overflow of the liquid unless great care were used to prevent it and that, in this case, it might fairly be inferred that due care was not exercised. The evidence showed that the oil pumps were used to dispense the oil into containers furnished by the customers. Each drum was equipped with a device operated by a spring designed to close the outlet of the drum when the customer had been served; but it was not unlikely that the oil would overflow or run down the sides of the container which the customer would then carry out of the store by walking in the aisle toward the foot of the stairway. The finding of negligence on the part of the defendant was therefore supported by the evidence.

The defendant depends upon the general rule, amply supported by the North Carolina decisions, that a storekeeper may not be held liable for accidental injuries caused by foreign substances on the floor of his place of business unless the evidence shows that the deposit was due to his own neglect or, if it was placed on the floor by another, such as customers of the store, unless he had notice of the condition and an opportunity to correct it before the accident occurred. Thus, in Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625; Griggs v. Sears, Roebuck & Co., 218 N.C. 166, 10 S.E.2d 623; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 55 S.E.2d 493, storekeepers were held liable for injuries due to the presence of a substance on the floor such as floor wax applied by the owners, whereas in such cases as Cooke v. Great Atlantic & Pacific Tea Co., 204 N.C. 495, 168 S.E. 679; Fox v. Great Atlantic & Pacific Tea Co., 209 N.C. 115, 182 S.E. 662; Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242, and Jackson v. Hudson-Belk Co., 229 N.C. 795, 50 S.E.2d 36, the proprietor was exonerated from liability for the presence of various substances, such as articles of food even though similar articles were on sale in the establishment, since there was no evidence to show how long the substances had been on the floor or that the defendant had had an opportunity to remove it.

The question for decision is into which of these two categories the present case falls. The defendant argues that it is relieved from liability because the plaintiff failed to offer any direct evidence as to how the oil came to be on the floor or how long it had been there when she fell. We think, however, that this is a case in which notice of the oil on the floor was not a prerequisite to liability since its presence was foreseeable from the way in which the business was conducted to that, as the District Judge held, it was the duty of the defendant to take care that customers would not be hurt. In our opinion, it is a reasonable inference that the sole source of the motor oil on the floor was the supply of motor oil in the pumps and that, in filling the customers' containers from an open outlet, it was reasonable to expect that some oil would overflow or be spilt on the sides of the containers and find its way to the floor when they were handled by the defendant's salesmen or the customers in a narrow...

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2 cases
  • Duggins v. Colonial Stores, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 23 Septiembre 1963
    ...158, 66 S.E.2d 652, 28 A.L.R.2d 609. 7 Allison v. Great Atlantic & Pacific Tea Co., 4 Cir., 99 F.2d 507; and see Montgomery Ward & Company v. Bailey, 4 Cir., 271 F.2d 573; Mullen v. Winn-Dixie, 4 Cir., 252 F.2d ...
  • Norwich Pharmacal Company v. Sterling Drug, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 9 Noviembre 1959

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