Achter v. Sears, Roebuck & Co.

• Citation: 105 S.W.2d 959
• Decision Date: 01 June 1937
• Docket Number: No. 23909.,23909.
• Court: Court of Appeal of Missouri (US)
• Parties: SOPHIA ACHTER, APPELLANT, v. SEARS, ROEBUCK & Co., A CORPORATION, RESPONDENT.

105 S.W.2d 959

SOPHIA ACHTER, APPELLANT, v. SEARS, ROEBUCK & Co., A CORPORATION, RESPONDENT.

No. 23909.

St. Louis Court of Appeals. Missouri.

Opinion filed June 1, 1937.

Appeal from the Circuit Court of the City of St. Louis — Hon. Frank Landwehr, Judge.

AFFIRMED.

Forrest M. Hemker for appellant.

(1) Savona v. May Department Stores (Mo. App.), 71 S.W. (2d) 157; Benesch and Sons v. Ferkler, 153 Md. 680, 139 Atl. 557; Parker v. Atl. & Pac. Tea Co., 201 N.C. 691, 161 S.E. 209: Brown v. Holzwasser. Inc. (Calif. App.), 291 Pac. 661; Bowden v. S.H. Kress & Co. (N.C.), 152 S.E. 625; Hall v. Great Atl. & Pac. Tea Co., 115 Conn. 698, 160 Atl. 302; Ward v. Avery (Conn.), 155 Atl. 502; McNeil v. Wm. G. Brown & Co. (C.C.A.), 22 Fed. (2d 675; Newell v. K. & D. Jewelry Co. (Conn.), 176 Atl. 405; Mclntyre v. Holtman, 258 N.W. 832, 193 Minn. 439; F.W. Woolworth v. Brown, 258 Ky. 29, 79 S.W. (2d) 362: The Fair, Inc., v. Preisach (Tex.), 77 S.W. (2d) 775; S.H. Kress & Co., v. Dyer (Tex.), 49 S.W. (2d) 986; Moore v. Great A. & P. Tea Co., 92 S.W. 912; H.F. Hohlt Co. v. Routt (Tex.), 48 S.W. (2d) 386. (2) Cech v. Mallinckrodt Chemical Co. (Mo.), 20 S.W. (2d) —

Anderson, Gilbert & Wolfort and Allen & Bierman for respondent.

The demurrer to the evidence was properly sustained and plaintiff's motion to set aside her involuntary nonsuit was properly overruled because there was absolutely no proof whatsoever of negligence of the defendant (Abs., pages 6 to 13. inclusive). Cluett v. Union Electric Light & Power Co., 220 S.W. 865. l.c. 868: Mullen v. Sensenbrenner Mere. Co., 260 S.W. 982; Stein v. Buckingham Realty Co., 60 S.W. (2d) 713; Spickernagle v. Woolworth Co., 236 Pa. St. 496, l.c. 497; Kipp v. Woolworth Co., 150 App. Div. 283, 134 N.Y. Sup. 646, l.c. 647: J.C. Penney v. Robison, 128 Ohio St. Rep. 627; Bonawitt v. Sisters of Charity of St. Vincent's Hospital, 43 Ohio App. 347; Abbott v. Richmond County Country Club, 207 N.Y.S. 183, l.c. 184; Curtiss v. Lehigh Valley R.R. Co., 233 N.Y. Rep. 554; Tenbrink v. F.W. Woolworth Co. (R.I.), 153 Atl. Rep. 245; Woolworth v. Williams (D.C.), 41 Fed. Rep. (2d) 970; Mona v. Erion, 228 N.Y.S. 533, 223 App. Div. 526; Dimarco v. Cupp Grocery Co., 88 Pa. Super. Rep. 449; Torbet v. F.W. Woolworth & Co., 238 N.W. 140; 45 C.J., page 866. (a) There was no evidence that the presence of oil upon the floor was caused by defendant. Abstract pages 6 to 13, inclusive; Cases supra. 1. There was no evidence that the floor had any oil on it whatsoever save at this spot. 2. There was no evidence that this spot was an oilier spot of a floor that appeared to have been oiled. 3. There was no evidence that there was a depression into which oil accumulated. 4. The evidence was that plaintiff didn't know what kind of oil it was, nor how long it had been there, nor how it got there. (b) Assuming, but not admitting, that this was oil that had been applied by defendant, it was not negligence to have an oiled floor. Spickernagle v. Woolworth, 236 Pa. 496; Diver v. Singer Mfg. Co., 205 Pa. St. Rep. 170: Penney v. Robison, 128 Ohio St. Rep. 627; Bonawitt v. Sisters of Charity of St. Vincent's Hospital, 43 Ohio App. 347; Tenbrink v. F.W. Woolworth Co., 153 Atl. 245; Abbott v. Richmond County Country Club, 207 N.Y.S. 183, l.c. 184; Kipp v. Woolworth Co., 150 App. Div. 283, 134 N.Y.S. 646, l.c. 647; Mona v. Erion, 228 N.Y.S. 533, 223 App. Div. 526; Dimarco v. Cupp Grocery Co., 88 Pa. Super. Rep. 449. (1) There was no evidence of improper oiling or the use of improper oil. Cases cited under (b). (2) There was no evidence that the floor was in any other or different condition than would have resulted from proper oiling. Cases cited under (b). (c) There was no evidence of notice, either actual or constructive, of the presence of this oil upon the floor. Abs. pages 6 to 13. incl.; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Varner v. Kroger Grocery & Baking Co., 75 S.W. (2d) 585; Kipp v. Woolworth. 150 App. Div. 283, 134 N.Y.S. 646; Woolworth v. Williams (D.C.). 41 Fed. Rep. (2d) 970; Mona v. Erion, 228 N.Y.S. 533, 223 App. Div. 526. (d) Had the court refused to sustain the demurrer to the evidence defendant would have been an insurer. Vogt v. Wurmb. 318 Mo. 471, 300 S.W. 278; Cluett v. Union Electric Light & Power Co., 220 S.W. 865, 868 l.c.; Woolworth v. Williams (Dist. of Columbia), 41 Fed. Rep. (2d) 970, 971-972 l.c.

HOSTETTER, P.J.

This is a suit brought by plaintiff, Sophia Achter, to recover damages for personal injuries alleged to have been sustained by her on March 16, 1933, in the retail department store operated by defendant in the city of St. Louis. Plaintiff claims to have slipped on some oil that was present on the floor and fallen to her knees and thereby injured.

The petition contained allegations to the effect that on the 16th day of March, 1933, she went into the defendant's store to purchase various articles and while there she was caused to slip and fall to the floor and thereby to sustain injuries; that defendant was negligent in failing to maintain the premises in a reasonably safe condition for persons walking there; in causing and permitting the floor to become slick so as to render it dangerous; in causing and permitting a coat of oil to accumulate and gather on the floor so as to render it dangerous; and in causing and permitting paper wrappings to remain on the floor so as to render it dangerous.

The answer was a general denial.

Plaintiff testified that she was a woman forty-four years of age; that she left her home in Pevely, Missouri, and came to St. Louis on the morning of March 16, 1933; that she went into the store of defendant, located on South Grand Avenue, to do some shopping and that she got there between 9 and 9:30 in the morning; that she went to various departments on the first floor to make purchases; that she went to the men's department, also on the first floor, and asked for a shirt and looked on several counters with the saleslady and that as she was walking along close to the counter on the center side of the store, her right foot slipped and pitched her forward and tripped her left foot; that she fell on her knees and the saleslady asked her what happened and she said she did not know: that she was helped up and tried to stand on her foot and it pained her; that she then looked at the floor where she had fallen, and saw a mark where her foot had slipped and that her heel had slipped on the floor and that her coat and dress had a spot of oil where she fell on her knee; that the spot of oil was about the size of the print of her knee; that the spot on her coat was even with her knee and that the other one was on her dress, as her coat was open; that the mark was from eight to ten inches long where her heel had slipped on the floor. She stated that she saw oil on the floor; that she had on leather heels.

On cross-examination she stated that her right foot slipped, not forward, but sidewise, in front of her left foot and that she fell forward; that the floor was a hardwood floor with no carpeting, and that she did not notice any oil on the floor before she slipped. Upon inquiry as to whether or not there was a pool of oil on the floor, she stated that there was enough oil which would make the mark on the foot which had slipped. She stated that first of all she could tell it was oil on her clothes and she noticed the mark on the floor which was caused by the slipping of the foot on the oil; that the oil looked different from the drink of water that was brought to her; that the water had not been on the floor. She stated she had never seen any oil on the floor before she fell; that she did not know how long the oil had been on the floor; and that she did not know how it got there, and that she did not know what kind of oil it was that she saw on the floor.

Plaintiff also offered and read in evidence a part of the deposition of James L. Hoffson, as follows:

Mr. Hoffson testified that he was building superintendent and special agent for Sears, Roebuck; that the part of the floor that was not carpeted was treated with oil; that the oil they used was pale paraffin floor oil purchased from the Standard Oil Company; that he supervised the oiling process; that it was his duty to see that the floor was taken care of and oiled, but there wasn't any set day for the oiling; that the manager told him when he wanted the floors oiled; that the last time they had been oiled was February 25, 1933; that the three porters, after the closing of the store Saturday evening, February 25, 1933, applied oil to the floor with mops and allowed it to soak in; that his records showed that was the last time the floor was oiled prior to plaintiff's fall, and that after the oiling he inspected it.

This was all the testimony offered as to the condition of the floor and as to how the accident happened.

The court gave an instruction offered by defendant in the nature of a demurrer to plaintiff's evidence, and plaintiff took an involuntary nonsuit, with leave to move to set the same aside and upon judgment being rendered against plaintiff, and the overruling of her said motion to set the same aside, plaintiff perfected her appeal to this court.

In passing on the sufficiency of the evidence adduced by plaintiff to make a submissible case for the jury, we are not unmindful of the well recognized rule that she is entitled to have such evidence to be taken as true and she is also entitled to the benefit of all reasonable and legitimate inferences deducible therefrom.

We are also not unmindful of the generally recognized rule that a storekeeper is required to use ordinary care to keep his premises in a reasonably safe condition for the benefit of his customers, his invitees.

A fair analysis of the testimony given by and on behalf of plaintiff discloses the following, viz:

1st. An absence of any testimony to the effect that the oil, which plaintiff saw on the floor after she fell, was placed there by ...