Booth v. Warehouse Market

• Decision Date: 19 July 1955
• Docket Number: No. 36602,36602
• Citation: 1955 OK 215,286 P.2d 721
• Parties: Mary Elizabeth BOOTH, by her next friend and stepfather, Willis C. Deitz and Willis C. Deitz, in his individual capacity, Plaintiffs in Error, v. WAREHOUSE MARKET, Inc., a Corporation, Myrtie Mae Thomas and Roger Lee Thomas, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 721

286 P.2d 721

1955 OK 215

Mary Elizabeth BOOTH, by her next friend and stepfather Willis C. Deitz and Willis C. Deitz, in his individual capacity, Plaintiffs in Error, v. WAREHOUSE MARKET, Inc., a Corporation, Myrtie Mae Thomas and Roger Lee Thomas, Defendants in Error.

No. 36602.

Supreme Court of Oklahoma.

July 19, 1955.

Syllabus by the Court.

1. In a suit for damages for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had on account of such negligence.

2. The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.

3. Where the admitted facts fail to show a causal connection between the acts of negligence and the injury alleged to have resulted therefrom the existence of proximate cause is a question of law for the trial court.

4. In an action founded upon the law of negligence when the evidence and any permissibve inference does not show a causal connection between the negligence charged and the injury, or that any asserted negligence was the proximate cause of the injury it is the duty of the court to sustain defendant's demurrer to plaintiff's evidence and to render judgment for the defendant.

Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Plaintiffs, Mary Elizabeth Booth, by her next friend and stepfather, Willis C. Deitz, and Wills C. Deitz individually, brought this action against the defendants, Warehouse Market, Inc. and Myrtle Mae Thomas, to recover damages for personal injuries suffered by said Mary Elizabeth Booth when struck by an automobile driven by Myrtle Mae Thomas in a parking lot owned by said Warehouse Market, Inc. Default judgment for plaintiff against the individual defendant. From an order sustaining a demurrer of Warehouse Market, Inc. to the evidence, plaintiff has appealed. Affirmed.

Paul W. Brightmire, Joe Francis, Tulsa, for plaintiffs in error.

Houston, Klein, Melone & Davidson, Henry Kolbus, Tulsa, for defendants in error.

DAVISON, Justice.

This is an action, brought by the plaintiffs, Mary Elizabeth Booth, by her next friend and stepfather, Willis C. Deitz, and Willis C. Deitz in his individual capacity, against the defendants, Warehouse Market, Inc., Myrtle Mae Thomas and Roger Lee Thomas, to recover damages for personal injuries received by Mary Elizabeth Booth when struck by a car being driven by Myrtle Mae Thomas in a parking lot owned and maintained by Warehouse Market, Inc. The parties will be referred to as they appeared in the trial court.

On the afternoon of June 14, 1952, Mr. and Mrs. Deitz and their four children, riding in a pick-up truck, drove into the parking lot maintained by the Warehouse Market, Inc., for use by its customers. That was in Tulsa, Oklahoma. The parking area was filled to near capacity and Mr. Deitz drove the truck to the extreme east end of the south row of parked automobiles. The children were wanting ice cream, so Mr. Deitz and the daughter, Mary Elizabeth, then nine and one-half years old walked through the parking lot to the large super market operated by the corporate defendant to get the ice cream. Mrs. Deitz remained at the car with the other children. Mr. Dietz brought four ice cream confections which he gave to the child to carry to the car. Her mother met her on the sidewalk and walked part way back with her. Mrs. Deitz then told her to cross the other lanes to the truck but to, first, look in both directions before crossing. Mrs. Deitz then turned and started into the store to meet Mr. Deitz and to do her shopping. She heard a scream. Mary Elizabeth had been struck by an automobile driven by the defendant, Myrtle Mac Thomas. The child received multiple injuries including a fractured leg.

On February 5, 1953, this action was filed against the warehouse company and the Thomas girl. The latter did not appear or file pleading and default judgment was rendered against her in the amount of $5,711.50 from which no appeal was taken. As to the corporate defendant, the trial court sustained its demurrer to plaintiffs' evidence and this appeal has been perfected from the judgment thereon.

Plaintiffs' theory of the case was that 'The injury to the little girl plaintiff * * * was caused by the conjoint negligence of the Warehouse Market and of Myrtle Mae Thomas.' It is insisted that the Warehouse Market was negligent in that it had so arranged the parking lot that a crowded and congested condition existed which was dangerous and hazardous to pedestrians because the parking lanes were too close together and parked rows of cars obscured the vision of moving cars. Other acts of negligence asserted were that no cross walks were provided for pedestrians and that there was no police...