Brown v. Kroger Co.
| Decision Date | 15 June 1962 |
| Docket Number | No. 8022,8022 |
| Citation | 358 S.W.2d 429 |
| Parties | Daisy BROWN, Plaintiff-Respondent, v. The KROGER COMPANY, a corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henson & Henson, Poplar Bluff, for defendant-appellant.
Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, Byron Kearby, Poplar Bluff, for plaintiff-respondent.
This is an appeal from a judgment on a verdict of $12,500 in favor of plaintiff-respondent Daisy Brown, on account of the aggravation of a varicose vein condition.
On February 28, 1958, plaintiff, a house-wife (age 44 years at time of trial on May 1, 1961), was shopping in defendant's supermarket. She undertook to take a six-pack carton of Pepsi-Cola from a low shelf and place it in her shopping cart. The carton was an old one, the bottom was discolored 'like it had been wet,' one side of the bottom came loose, and a bottle fell to the floor and broke. A piece of glass made a cut, about one inch long, on the shin of plaintiff's left leg. Further details of this occurrence will be found in Brown v. Kroger Co., Mo., 344 S.W.2d 80. After the occurrence the store manager took plaintiff across the street to a Dr. Turner, who cleansed the cut and put a band-aid over it. She returned to the doctor the next day and the process was repeated. Then she went to Michigan, stayed not to exceed two weeks, and returned home. The wound stayed sore, became inflamed, and caused her considerable pain. Some (from) ten days to four weeks after the incident of the cut, she went to her own physician. He found her suffering from phlebitis, an inflammation resulting in a swollen leg, and a sore or ulcer on the front of the leg. Her physician treated her and put a restrictive bandage on her leg which plaintiff wore for several weeks. During this period the condition was very painful and plaintiff sat with the leg propped in a chair a good part of the time and could not do her housework. She used crutches part of the time. In June 1958 the doctor operated on the leg and took two veins out of the front of the leg. Plaintiff remained in the hospital for one week. Her after-treatment consisted of the injection of a sclerosing agent in other veins in the front of the leg, ointments and a bandage. It was two weeks before she could get around, and after that she 'just crippled around' for awhile. Thereafter her leg was painful around the cut place and sometimes burned and ached 'all the way up to my hip.' At time of trial she still wore a band-aid over the sore place. Her doctor testified that the ulcer or sore place would heal but that the damage from infection to the veins and lymphatic system in the leg would remain; that the calf and ankle of her left leg were one-half inch larger around than the right calf and leg; that in his opinion the condition, known commonly as milk-leg, would continue to be painful.
As to plaintiff's previous condition: In 1947 or 1948, following birth of a child some ten years before the incident here involved, plaintiff had developed a varicose vein condition which resulted in her being hospitalized, and the vein on the inside of her left leg, from groin to ankle, was removed. She testified that after about three weeks this give her no more trouble.
In 1954, some four years before the incident here involved, a hammer had been knocked off a stepladder and in falling bumped the shin of her left leg. It did not break the skin, but plaintiff developed trouble with the leg, was hospitalized for three days, and was treated with heat. She says this condition 'cleared up in just a few weeks.' Her physician thereafter had warned her to be very careful with her leg and she knew that any blow or cut would 'cause more trouble than if it was a normal healthy leg.' Her physician in the 1954 incident was the same one who treated her in respect to the incident here involved. However, during his treatment of her, and in the removal of the two veins from the front of her leg, he did not discover, and did not know of, the fact that she had previously had a vein removed from the entire length of this leg in 1947 or 1948. She gave him no history of it.
Appellant's first contention is that plaintiff did not make a submissible case because (a) there was no evidence of negligence on the part of defendant, (b) there was no evidence of knowledge of a defective soda carton, (c) there was no proof that the container involved was defective, and (d) plaintiff was guilty of contributory negligence as a matter of law in permitting the cut to become infected.
As to (a), (b), and (c) above we think the question is foreclosed. In Brown v. Kroger Company, Mo., 344 S.W.2d 80, the Supreme Court ruled on the submissibility. As nearly as we can tell, the decision was based on identical or almost identical evidence. We are not inclined to overrule the Supreme Court as to those matters so decided.
As to (d), defendant bases its claim upon the fact that plaintiff, having knowledge of her existing leg condition, went her usual way, in fact went to Michigan; that during the period of ten days to four weeks, until she went to her own physician, she bathed every day or two; that in so doing she would remove the band-aid over the cut and submerge this leg, along with the rest of herself, in water which contained soap and in which she also had added an antiseptic such as Lysol; and that after so bathing she would replace a band-aid over the cut. 'That is what Dr. Turner told me to do.' In response to a hypothetical question involving the submerging of the leg in soapy water, her personal physician (the one who treated her later) stated only, 'I wouldn't treat it that way.'
Although it is the duty of a person injured to use the care of a reasonably prudent person to mitigate and not aggravate his injuries, 1 the failure to attempt to mitigate will not bar the plaintiff entirely from recovery. It does not destroy the cause of action for injury. 25 C.J.S. Damages Sec. 33, p. 502; Lokey v. Rudy-Patrick Seed Co., Mo.App., 285 S.W. 1028(12); Cline v. City of St. Joseph, Mo.App., 245 S.W.2d 695, 702. It would therefore seem that the subject is not a proper one to be considered on a demurrer type motion. But, acting upon the assumption that the defendant intended to contend that the damages sued for were not the proximate result of the wrong suffered, we will consider it. 2
There is nothing in the evidence which shows that plaintiff's bathing caused the infection. The nearest approach to it is the answer of the physician that 'I wouldn't have treated it that way.' On the other hand, in doing what she did she was following the advice of the physician to whom she was taken by defendant's store manager. 3
From time to time, probably ever since prehistoric man first waded into the river and had his leg nibbled by an ancestor of the crocodile, there has been controversy as to whether bathing is unhealthful. Some students have argued that a contributing cause to the decline and fall of Rome was that leading citizens spent too much time luxuriating in debilitating baths. In at least one American colony, frequent bathing was considered not only unhealthful but slightly immoral. There is today a rather large segment of the population, composed mostly of busy boys, which holds to the belief that bathing, if not unhealthful, is at least inconvenient. We refuse to enter into the dispute further than to say this court does not intend to hold a lady guilty of contributory negligence as a matter of law because she takes a bath every day or two.
Error is assigned because of refusal to strike the testimony of the witness Umfleet, an employee of the store who witnessed the occurrence and later examined the cardboard carton, that a part of such carton 'was discolored, like it had been wet,' because such testimony was a conclusion which invaded the province of the jury. Although reference to this testimony was made in Brown v. Kroger Co., supra, Mo., 344 S.W.2d 80, there is no indication that objection had been made or that the point was raised.
Where the facts or premises upon which a conclusion is based can be fairly stated, then the conclusions of a nonexpert witness are not admissible, for the facts themselves can be put in front of the jury. But when it is impossible or extremely difficult for a witness to convey an accurate and actual meaning, and the nature of the thing described may be more clearly and practically conveyed to the jury by a summary of the witness's impressions, or by comparison with some ordinary object or condition familiar to the court or jury, then the practical administration of justice requires acceptance of the testimony even though it may be, in a sense, the conclusion of the witness. 4
It can well be argued that practically all so-called statements of fact are in reality the conclusions of the speaker based on the sum total of his impressions in regard to any certain object of discussion, concerning which the various and minute impressions that result in the conclusion cannot readily be communicated, in fact may not be separately recognized or realized by the witness. The practical application of the rule against conclusions is simply a matter of degree. Just how else would a witness, or the reader, for that matter, in intelligible language of 100 words or less, describe the condition as accurately as did the witness without using the word wet or its equivalent? We hold the ruling was not error.
The court overruled defendant's objections to the introduction of the deposition of Max Merriman, the store manager, in regard to previous occurrences and conditions at the store. The deposition did not purport to cover any phase of the incident in which the plaintiff received her injury. It is contended that since the witness was not a party and was present and available to testify, the deposition should not have been admitted. This contention was raised in the former...
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