Montgomery Ward & Company v. Steele

• Decision Date: 19 November 1965
• Docket Number: No. 17823.,17823.
• Parties: MONTGOMERY WARD & COMPANY, a corporation, Appellant, v. Nellie Bell STEELE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

352 F.2d 822 (1965)

MONTGOMERY WARD & COMPANY, a corporation, Appellant, v. Nellie Bell STEELE, Appellee.

No. 17823.

United States Court of Appeals Eighth Circuit.

November 19, 1965.

Landon H. Rowland, Kansas City, Mo., for appellant, Robert B. Olsen, Kansas City, Mo., with him on the brief.

Richard K. Phelps, Lee's Summit, Mo., for appellee.

Before VAN OOSTERHOUT and RIDGE, Circuit Judges, and HENLEY, District Judge.

RIDGE, Circuit Judge.

In this jury-waived action, defendant appeals from a judgment for $4,000.00, entered in favor of plaintiff for personal injuries sustained as the result of a fall while she was on the business premises of defendant. Diversity jurisdiction clearly appears in the record. For convenience, we refer to the parties as they appeared in the court below.

Defendant maintains and operates a retail store and mail order house in Kansas City, Missouri. The north end of the first floor thereof is at ground level. Outside, there is what is termed a "north loading dock." Inside, defendant maintains a "customer area" where its business customers are invited to "pick up" and "make return" of merchandise purchased from it. Adjacent to the "customer area" and underground, there is a north-south corridor extending through defendant's building for a distance of over 300 feet. On both sides of that corridor defendant maintains warehouse facilities and branches of its mail order operations. Midway in such corridor, there is a stairway leading to defendant's retail store maintained on the second floor of its building. It is within that corridor area that the plaintiff in the case at bar fell and was injured, at a time when she was walking toward the stairway above mentioned to reach defendant's retail store, under the circumstances hereinafter related. The extent of plaintiff's injuries not being a matter in dispute at the trial, we are not concerned therewith in this appeal.

On the date of her fall, plaintiff, seventy-five years of age, in company with her husband and one J. W. Seaton, arrived at defendant's premises at approximately 8:45 A.M., for the purpose of returning an electric hot water heater previously purchased from defendant and making exchange of the same for a gas hot water heater. After unloading the electric heater onto the "north dock," plaintiff, her husband and Seaton entered the "customer area" of defendant's premises. Upon so doing, they were informed by an employee of defendant that its retail store did not open until 9:30 A.M., but they could wait in chairs provided for customers in the "customer area." Plaintiff and her companions seated themselves accordingly. Shortly thereafter, Seaton approached Charles Dashner, another employee of defendant. Seaton told Dashner the purpose of their presence. Dashner went out onto the "north dock" with Seaton and examined the heater to be returned. Thereafter, the two returned to the "customer area" where Dashner executed a "return receipt" for the heater and delivered the same to Seaton. Thereupon, Seaton asked Dashner if it would be all right if he, the plaintiff and her husband would go to the cafeteria in defendant's retail store for a cup of coffee and wait until the store opened. Dashner said, "Sure go ahead." Defendant contends Dashner then pointed toward a stairway located at the northeast corner of the customer area. Seaton testified he then told Dashner that he (Seaton) "knew the way to the cafeteria" as "he had been on the premises several times before." With that, Seaton returned to the place where plaintiff and her husband were seated in the customer area. Dashner proceeded to get a warehouse truck, and went onto the north dock to bring the electric heater inside.

After Seaton returned to the place where plaintiff and her husband were seated, he said, "Let's go upstairs and have a cup of coffee." The three started walking down the corridor ante, toward the stairway located therein. No employee of defendant saw them enter or walking in the corridor. There were no signs or other notice posted in the customer area, or in the corridor, warning business customers of defendant that such corridor was off limits or giving direction to the entrance to be used to reach its retail store. The evidence establishes that a business customer of defendant being seated in the customer area, as was plaintiff in the case at bar, would be facing the corridor area above mentioned.

From appearance, a person so seated reasonably might consider the corridor to be a passageway from a "customer area" to the retail store of appellant. Seaton, during previous visits to appellant's premises, had used the corridor area and stairway located therein several times to go to appellant's retail store and had never been deterred or restrained from so doing. There was evidence before the court below that prior to the time of plaintiff's fall and injury, other business customers of appellant had also used such corridor and the stairway therein to gain access to the retail portion of defendant's premises. After walking about 150 feet down the corridor in an ordinary manner, plaintiff's foot slipped from under her, causing her to fall and be injured.

The trial court, by specific findings of fact, among others, found:

"3. The plaintiff\'s fall was caused by an oily sweeping compound left on the floor where plaintiff fell, by a servant of the defendant and that sweeping compound made the floor slippery and unsafe to walk upon.

"4. The corridor in the defendant\'s warehouse on which the plaintiff and her companions were proceeding had been used in the past by other customers and by the plaintiff\'s companions to gain access to the retail portion of the defendant\'s store.

* * * * * *

"6. The plaintiff or her companions had been told it would be all right to proceed along the north-south corridor to get to the retail portion of the defendant\'s store.

"7. At the time the fall occurred, approximately one half of the electric lights providing light for the area in which the plaintiff fell were not on, and combined with the dark green color of the (corridor) floor, provided inadequate lighting for the safety of defendant\'s customers.

"8. That there were no signs or barriers prohibiting the entry of customers into the north-south corridor where the plaintiff fell."

It is manifest from the record before us that this case was tried and submitted to the court below on the theory that an implied invitation was held forth and extended to plaintiff and her companions to use the corridor in question as a passageway to reach defendant's retail store and cafeteria located on the second floor of its premises.

Defendant in this appeal does not contend that the findings of fact, ante, are not supported by competent evidence adduced at the trial of this case. Its primary assignments of error are stated as follows:

"I. The trial court erred in holding that plaintiff was an invitee at the time and place of her fall * *."

In support thereof, it asserts:

"A. The appearance of the warehouse aisle put plaintiff on notice that it was off-limits to customers.

"B. Plaintiff\'s use of the warehouse before defendant\'s business hours was not within the scope of defendant\'s invitation to its customers.

"C. Plaintiff was directed, both before and after her fall, to use the northeast stairs instead of the warehouse aisle.

"D. Defendant\'s custom and practice was to exclude customers from its warehouse.

"E. The trial court erred in ruling that defendant\'s custom and practice were not binding on plaintiff, and in excluding evidence of such custom and practice.

"II. The evidence does not support the trial court\'s finding that defendant was negligent in failing to warn plaintiff of sweeping compound on the floor of defendant\'s premises and that defendant\'s negligence was the cause of plaintiff\'s injuries."

In support thereof, appellant argues:

"A. Plaintiff failed to show that she had no knowledge of an allegedly dangerous condition on defendant\'s premises.

"B. Even if defendant was negligent in failing to warn plaintiff of a dangerous condition, the evidence was insufficient to prove plaintiff\'s injury was caused by such negligence."

"III. The trial court erred in concluding that plaintiff was not contributorily negligent because she observed the allegedly dangerous condition, she fell easily and she deviated from the safe path to which she had been directed."¹

In light of the findings of fact as made by the court below and defendant's assignments of error, ante, we think the first matter that should here be made clear is: Defendant in this appeal concedes "that plaintiff and her party were (business) invitees of defendant" at the time they entered and were in the "customer area" of its premises as above related; and that the primary question presented in this appeal is whether at the time and place of her fall and injury plaintiff "exceeded the area of invitation" extended to her by defendant as a "business customer."

In any consideration of that matter, it should be kept in mind that under Rule 52(a), F.R.C.P., 28 U.S.C.A., defendant has the burden to clearly demonstrate that error exists in the findings of fact as made by a trial court. Such findings are presumptively correct and cannot be set aside on appeal unless clearly erroneous. The defendant has the burden of clearly demonstrating that matter before this court. (Manning v. Jones, 349 F.2d 992 (8 Cir., Aug. 1965). Rule 52(a), supra, has been the subject of discussion in numerous cases decided by the Supreme Court of the United States and this court. In United States v. United States Gypsum Co., 333 U.S. 364, at page 395, 68 S.Ct. 525, at page 542, 92 L.Ed. 746, it is stated: "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." In Dierks Lumber & Coal Co. v....