Brown v. Kroger Co.
| Decision Date | 13 March 1961 |
| Docket Number | No. 48293,No. 1,48293,1 |
| Citation | 344 S.W.2d 80 |
| Parties | Daisy BROWN, Appellant, v. KROGER COMPANY, a corporation, Respondent |
| Court | Missouri Supreme Court |
Briney & Welborn, Bloomfield, Kearby & Calvin, Poplar Bluff, for appellant.
Henson & Henson, Poplar Bluff, for respondent.
COIL, Commissioner.
The appellant, Daisy Brown, as plaintiff below, sought to recover $25,000 as damages for injury she allegedly sustained as the result of the negligence of defendant below, Kroger Company, a corporation. At the close of plaintiff's evidence the trial court directed a defendant's verdict. Plaintiff appealed from the ensuing judgment and contends that the trial court erred in so ruling for the reason that her evidence was sufficient to make a submissible case.
Defendant operated a supermarket at Dexter. On February 28, 1958, plaintiff and her husband were customers in that store. Plaintiff wished to buy some bottles of Pepsi-Cola and, having often traded there, knew they were located on the bottom shelf of a 3-shelf soda section. She grasped the handle of a cardboard carton containing six bottles of Pepsi-Cola, intending to place it in the self-service cart she was using. Suddenly she realized that a bottle had fallen from the carton to the floor, had broken, and that her leg was wet and bleeding. She then placed the carton on the floor on its side, stepped back and discovered that she had a cut just above the ankle on the inside of her lower limb. Prior to that time there were no empty cartons or broken glass on the floor in that area and there was no sign or notice warning customers of the danger in picking up old, worn cartons. Plaintiff did not strike the carton or its contents against anything as she moved it from the shelf. There was no person other than plaintiff's husband in the vicinity at the time.
Mr. Brown was behind his wife and realized that she had picked up an item and then heard something hit the floor. He then noticed that soda was running on the floor and that his wife's leg was bleeding. He saw a broken bottle and a cardboard carton on the floor on its side with other bottles of Pepsi-Cola still in the carton. He noticed that part of the bottom of the carton was torn loose at the corner.
A Kroger clerk testified that he was at the cash register, heard a noise, went to the soda section and saw a cardboard carton on the floor 'in the middle' of the broken soda bottle and did not notice whether the carton was wet; that it was a 'Mack' carton and its bottom had been torn loose. He shoved it under the shelf and later, either the next day (February 28, 1958, was a Friday) or the following Monday, examined it and saw that it looked as though it was an old carton that had been wet and had dried.
Defendant's answers to interrogatories established that Max Merriman was the Kroger store manager on the day of the accident and on April 8, 1959, the date when his deposition was taken by plaintiff; that among his duties as store manager were to 'see that all displayed merchandise is properly price-tagged or stamped' and to 'promote customer and employee safety within the store at all times.'
Over defendant's objection these parts of the store manager's deposition were admitted as admissions to show notice to and knowledge of Kroger as to the danger involved in using soda cartons that theretofore tofore had been wet: that a bottle of Pepsi-Cola was the heaviest bottle of soda Kroger handled except one; that a carton of six full bottles of Pepsi-Cola weighed ten pounds; that there had been prior occasions when soda bottles had fallen through the bottoms of cartons; that a cardboard carton is 'not fit for re-use after it has been wet and saturated with water, the bottom comes out'; that there were occasions when 'all vendors, on a rainy day, drive up with no tarp on their truck, with an item like that, with a paper carton, and come in and the bottoms be wet and soft'; that on occasions he as store manager had called the 'plants' about the wet cartons and had had wet and damp cartons taken off the shelves when he would observe the weakened condition of the carton after it had been placed on the shelf; that there had been previous similar incidents involving Pepsi-Cola cartons and other kinds of cartons.
Defendant contends that those portions of the store manager's deposition were not admissible in evidence because the manager was not a party, was admittedly present in the courtroom and available to testify, and the parts offered 'went beyond the testimony necessary to show knowledge and included testimony on the issue of negligence and was therefore inadmissible under the hearsay rule.'
The record shows that the portions of the deposition in question were offered as admissions to show defendant's notice and knowledge of the condition of the cartons. The objection in the trial court was only that the store manager was not a party and was present in the courtroom and available to testify. Indeed defendant specifically stated that he was not objecting It is apparent that defendant did not object on the ground that part of the proffered statements did not tend to show knowledge on the part of defendant but tended to prove negligence.
Defendant did not at the trial and does not in its brief point out wherein the parts of the store manager's deposition read in evidence 'included testimony on the issue of negligence.' It is not apparent to us that any of the admitted statements did not pertain to matters tending to show knowledge on the part of the defendant through its store manager. We need not therefore consider the question whether deposition statements of the store manager pertaining to matters within the scope of his authority at the time of the accident and at the time of the deposition were admissible against his employer as tending to prove negligence on the employer's part, even though the manager was not a party and was available as a trial witness. We consider and rule only the question whether the store manager's deposition statements tending to show notice to and knowledge on the part of his employer, the defendant in the case on trial, were admissible for the purpose of showing such notice and knowledge even though the store manager was not a party to the lawsuit and was in the courtroom at the time the parts of his deposition were offered.
Plaintiff's averments of defendant's specific negligence made the existence of the knowledge of the Kroger Company a material fact question. The deposition statements made by Kroger's store manager pertained to matters within the scope of the manager's employment both at the time of the accident and at the time he gave his deposition. The statements were offered against Kroger as tending to prove its knowledge as to whether wet soda cartons were...
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