Bagwell v. McLellan Stores Co.

• Decision Date: 08 September 1949
• Docket Number: 16260.
• Parties: BAGWELL v. McLELLAN STORES CO.
• Court: South Carolina Supreme Court

57 S.E.2d 257

216 S.C. 207

BAGWELL v. McLELLAN STORES CO.

No. 16260.

Supreme Court of South Carolina.

September 8, 1949

Watkins & Watkins, Anderson, for appellant.

O.H Doyle, Anderson, Francis R. Fant, Anderson, for respondent.

OXNER, Justice.

This is an action to recover damages for personal injuries sustained by respondent as a result of slipping and falling on the floor of a store operated by appellant. The trial resulted in a verdict for respondent in the sum of $4250.00. The appeal presents two questions: (1) Did the Court err in refusing appellant's motion for a directed verdict on the ground that there was no proof of actionable negligence? (2) Did the Court err in the admission of certain testimony claimed by appellant to be hearsay?

On the afternoon of March 24, 1948, a clear day, respondent, a widow sixty-six years of age, entered the store of appellant at Anderson and purchased four metal curtain rods. As she was walking along the aisle in leaving, carrying the metal rods and a man's coat wrapped in a package, she said that 'all at once my feet went from under me like I was on ice.' Several customers in the store and the assistant manager immediately came to the scene and rendered assistance. It developed that respondent was rather seriously injured and shortly thereafter she was removed to the hospital.

The only allegations in the complaint relating to the floor being defective or unsafe are as follows: 'That the store building in which the defendant conducts its business is very old and the floor of same has been repeatedly refinished on the surface and at some places, including the place where plaintiff fell, is not level and the refinishing process together with the constant use of cleaning oil and cleaning preparations caused some places on the floor, including the place where the plaintiff fell, to become excessively slick to (so) that when plaintiff stepped onto the excessively slick and slightly uneven place on the floor the weight of her body caused her feet, with great suddenness, to slip and her body to fall.'

Respondent testified that at the time of the accident she was wearing a 'black dress and light flesh colored stockings', and that when she was later able to examine this dress, there was 'a spot, looked like a greasy spot, down the side' of it. Several of her witnesses who saw her immediately after the accident observed a discoloration on her left stocking but gave rather varied descriptions of its appearance. One said that it was a 'brownish dark spot'. Another testified: 'The hose was soiled around the ankle. The best I could tell you it was a soiled place around the ankle just a little above and around the ankle. It looked just soiled.' Only one of her witnesses, a Mrs Harper, described it as 'greasy'. On cross examination she testified:

'When she stood up, I dusted off her clothes. It was dusted off. There was a soiled place on the calf of her leg. Her hose was not torn and her leg was not skinned or bleeding.

'Q. And you brushed that with your hand, and you tried to brush that dirt off?

A. Yes, sir.

'Q. Now, it was largely dust, wasn't it, Mrs. Harper? A. Well, there was some grease. I don't think that a lady would go down town with her hose greasy like that. It definitely was greasy.

'Q. Was it sticky?

A. No, it wasn't sticky. I didn't get any on my hand.

'Q. It didn't come off on your hand? A. The loose dust brushed off there. The grease on the hose didn't brush off.

'Q. Your hands didn't get greasy from dusting her hose off? A. I didn't look. I just brushed them like that I didn't look at them. I couldn't say.

'Q. Did that place feel damp? Could it have been a damp place that discolored her stocking?

A. I didn't notice it feeling damp especially. It was just a greasy spot.

'Q. By greasy, you mean it was dark and didn't brush out easily when you brushed it with your hand?

A. Yes.

'Q. You don't mean it was necessarily kitchen grease or oil? A. It was dirty, greasy, whatever it was, it was dirty.

'Q. It was a discoloration of the hose and didn't dust out easily when you dusted it with your hand? A. That's right.

'Q. But you don't actually say you got grease on your hands? A. No, I didn't. I didn't look.

'Q. You didn't notice any grease on her coat? A. No, sir, I didn't.

'Q. Did you notice any grease on her arm where she propped herself up? A. No, sir, I didn't look. I didn't notice any grease.

'Q. Did you notice any grease on her shoes? A. No sir, I didn't look. I just noticed this on her hose.

'Q. And you didn't notice any grease on the floor, did you, Mrs. Harper? A. Well, nothing except the dark floor. No, there wasn't actually any grease at that spot she fell any more than the whole floor was dark like any well-used floor.

'Q. Did you see anything on the floor at the point where she fell different from the floor in the other parts of the building? A. No, sir, I didn't.

'Q. There was no grease there? No accumulation of grease at that point, was there? A. Well, no more than was on the other part of the floor.

'Q. And you say it was a dark floor? A. Yes.

'Q. Did you rub your hand along the floor to see if grease came up? A. No sir, I didn't.'

Mrs. Harper further stated that she 'didn't see any marks on the floor that might have been made by Mrs. Bagwell just as she fell'. This witness also testified that shortly after the accident, the assistant manager of the store, while assisting respondent, remarked: 'I have slipped on this floor several times myself.'

Respondent's brother testified:

'I went to see the floor at McLellan's Store along in the summer with one of my brothers. We examined the condition of the floor just generally. It is a pine floor, looks to be what you would call hard pine floor. We looked around the different aisles. We had been told where she fell and examined the floor there, and found it practically the same condition there that it is a lot of other places. The floor is worn right smart up and down the aisles. Next to the side of the counter, it is not worn so much. It is darker and there is a dark oily looking piece of wood a few inches from the side of the counter. The last time I looked it was about the same condition. The top of the counter hangs over a few inches. What I describe is next to the bottom of the counter along the floor by the side of the counter. I put my fingers down and felt it. I didn't get any grease on my hand then. It seemed slick. I didn't get any grease. It was dark, but I didn't actually get any on my hand. * * * The place I am talking about, the only place that I felt smooth was against the base of the counter and underneath that overhang. I didn't put my hand out in the center of the aisle. The place that is darkest is, I would say, about six to seven inches from the edge of the counter. I couldn't say whether a person could walk underneath that overhang. * * * The floor seemed to be springy. It gives a little bit like it had been a floor put on top of another floor. It seemed to be worn or 'givey' in places. I didn't measure the overhang of the counter. It has a table effect. The top of the counter hangs over a little like that table there. A person can get her feet along there and then step back some from the counter. That streak that I saw is next to the foot of the counter. A person examining goods on the counter can put a foot on that place. You naturally walk up to that table and put your foot up against the counter.'

The left shoe worn by respondent at the time of the accident, 'a black pump, with a medium heel, the heel having a rubber tap', was introduced in evidence and the record states that there was 'no oil, grease or other foreign substances on the shoe.'

The assistant manager of the store denied making the statement attributed to him by Mrs. Harper and stated that he had never slipped on the floor of this store. He testified that he carefully inspected it after respondent was sent to the hospital and found nothing which would cause one to fall and saw no 'skid marks'. He further testified that each night and several times during the day the floor is swept by two porters with a broom but nothing is used on the floor in doing so; that three or four times a year, after store hours 'Myco-sheen' is applied on the floor with a mop for the purpose of keeping the dust down; and that Myco-sheen was applied two days before respondent's accident. The manager of the store testified that he also examined the floor after the accident and found no grease, oil or water and saw no marks indicating that anyone had slipped on it. He said that Myco-sheen evaporates much quicker than water and its application does not make the floor slick. A representative of the manufacturer of Myco-sheen described this compound as 'a combination of solvents and gums. The solvent is in the cleaner. The gums put a protective surface on the floor to cause non-slip. * * * There is no grease in it.' He said that it was widely used by department stores. Another witness for appellant, who had been in the construction business for a period of forty years, testified that the floor of this store was laid under his supervision when the building was renovated in 1932 or 1933; that it is a 'rift pine floor, that is, edge grain', laid over a sub-floor which is standard construction; that he examined the floor after respondent's accident and found that although in some places the planks were worn, the floor was in 'good shape' considering the wear upon it for fifteen years; and that he considered it 'a safe floor.' He further stated: 'I couldn't see any difference between the different aisles, as to the condition of the floor. Wear tends to make a rift pine floor ridgy. * * * I didn't notice in going over it...