C. & R. Stores, Inc. v. Scarborough

• Citation: 196 So. 650,189 Miss. 872
• Decision Date: 10 June 1940
• Docket Number: 34179
• Parties: C. & R. STORES, INC., v. SCARBOROUGH
• Court: United States State Supreme Court of Mississippi

196 So. 650

189 Miss. 872

C. & R. STORES, INC., v. SCARBOROUGH

No. 34179

Supreme Court of Mississippi, Division B

June 10, 1940

Suggestion Of Error Overruled September 4, 1940.

APPEAL from the circuit court of Pearl River county, HON. J. C SHIVERS, Judge.

Action by Mrs. Elois Scarborough against the C. & R. Stores, Inc. for injuries sustained in fall on slippery floor of defendant's store. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Heidelberg & Roberts, of Hattiesburg, and Parker & Morse, of Poplarville, for appellant.

The court erred in refusing to grant unto appellant a peremptory instruction.

The appellant owed unto the appellee the duty, and only the duty of exercising reasonable care to furnish to the invitee a reasonably safe place, and the appellee owed to herself the duty of using her natural senses for her own safety and for her own protection, she had to use ordinary care for her own safety; it was necessary for her to charge in her declaration that she was at the time of the alleged accident using ordinary care for her own safety, and if it was necessary for her to charge this in her declaration it was necessary for her to prove same, and if she failed to prove that she exercised ordinary care, just as the appellant set up in its notice under the general issue, then her case failed because she is charged with a knowledge of all such perils as are obvious and discoverable by reasonable observation and the use of her senses.

45 C. J. 837, par. 245; 20 R. C. L., pp. 56, 57, sec. 52, p. 111, sec. 98, p. 113, sec. 99; 2 Restatement of the Law, Torts, pp. 938, 939, 940, sec. 343; Daniel v. Jackson Infirmary, 175 Miss. 832, 163 So. 447; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Eagle Cotton Oil Corp. v. Sollie, 187 So. 506; Thomas v. Williamson, 187 So. 220; Harris et al. v. Pounds, 187 So. 891.

The court erred in granting unto the plaintiff the instruction found on pages 14 and 15 of the record. The error in this announcement to the jury is that it excludes entirely the question of contributory negligence on the part of the appellee and leads the jury to believe that she is entitled to full damages and that she is not to be charged with any negligence on her part.

Sec. 586, Code of 1930; French v. Sale, 63 Miss. 386; Priestley v. Hays, 147 Miss. 843, 112 So. 883; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 156 So. 764; D'Antoni v. Albritton, 156 Miss. 756, 126 So. 836.

The court specifically erred in refusing to permit the defendant to interrogate plaintiff's witness, Gregory Scarborough, the husband of the plaintiff, with reference to his former conviction by general court martial for the offense of desertion and his being sentenced to and serving a term in the federal penitentiary on said offense.

Secs. 1380, 1531, Code of 1930; 10 U.S.C. A., p. 304, sec. 1530 and p. 305, sec. 1531; Grenada Lbr. Co. v. State, 98 Miss. 536, 54 So. 8; Ducotte v. Adams, 101 Miss. 435, 58 So. 475; Helm v. State, 67 Miss. 562, 7 So. 487; Lewis v. State, 85 Miss. 35, 37 So. 497; Bristow v. Dunnaway, 149 Miss. 5, 115 So. 36.

The court erred in refusing to permit the defendant to interrogate the plaintiff's witness, Gregory Scarborough, husband of the plaintiff, with reference to his having talked with H. K. McKee before the alleged accident with reference to handling against the C. & R. Stores, Inc., a claim for damages for said accident, and likewise the court erred in refusing to cause the said witness to answer in regard to this transaction.

McCreary, Executor, v. Hoopes, 25 Miss. 428; Randal v. Yates, 48 Miss. 685; Brown v. Poole, 127 Miss. 488, 90 So. 179; Hirsch Bros. Co. v. Kennington & Co., 155 Miss. 242, 124 So. 344.

The court erred in refusing to permit the defendant to show by the plaintiff's witness, Gregory Scarborough, her husband, that he had had damage suits and damage claims for himself and for his wife, the plaintiff herein, all of which is shown by the stenographer's notes of the evidence herein.

Prewitt v. State, 126 So. 824, 156 Miss. 731; Miss. Ice & Utilities Co. v. Pierce, 161 Miss. 252, 131 So. 164; Sec. 1532, Code of 1930.

The court erred in overruling the defendant's motion for a new trial in this case.

Truck Loading Co. v. Taylor, 174 Miss. 355, 164 So. 3; St. Louis & S. F. Ry. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Mobile J. & C. R. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Y. & M. V. R. R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; M. & O. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Buckingham v. Walker, 46 Miss. 609; Y. & M. V. R. R. Co. v. Pittman, 169 Miss. 667, 159 So. 382; Fore v. I. C. R. R. Co., 172 Miss. 451, 159 So. 557, 160 So. 903.

J. E. Stockstill, of Picayune, and Hathorn & Williams, of Poplarville, for appellee.

The proprietor of a store or shop owes the duty to his invitees to exercise reasonable care to discover the actual condition of the premises and either make them safe or warn such invitees of dangerous conditions therein and is subject to liability for bodily harm to an invitee caused by a dangerous natural of artificial condition thereon when he knows, or by the exercise of reasonable care could discover, the condition, and such invitee is not required to be on the alert to discover defects therein.

2 A. L. I. Restatement, Torts, pp. 939-944, par. 343; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; N. O. & N. E. R. R. Co. v. Brooks, 175 Miss. 147, 165 So. 804; S. H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; Sears, Roebuck & Co. v. Geiger et al. (Fla.), 167 So. 658; Grigsby v. Morgan & Lindsey et al. (La.), 148 So. 506; F. W. Woolworth Co., Inc., v. Erickson (Ala.), 127 So. 534; Bloomer v. Snellenburg, 221 Pa. 25, 69 A. 1124, 21 L. R. A. (N. S.) 464; Randolph & Great A. & P. T. Co. v. Weber (3 C. C. A.), 51 F.2d 1051; McNeil v. Wm. G. Brown & Co. (1 C. C. A.), 22 F.2d 675; Great A. & P. T. Co. v. Chapman (6 C. C. A.), 72 F.2d 112; Great A. & P. T. Co. v. McLray (6 C. C. A.), 71 F.2d 396; 20 R. C. L. 55, 66, pars. 51, 58; 45 C. J., p. 815, par. 223, and p. 823, par. 235, and p. 826, par. 237; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 26 L. R. A. 686, 48 Am. St. Rep. 547.

Applying this rule to the evidence in the case at bar, it abundantly appears (1) that if the floor was wet, slippery and littered up as shown by the testimony of the seven witnesses for appellee, and (2) if the floor had been in such condition for the length of time as shown by five of these witnesses, and (3) if appellee did not see or discover the condition of the floor on the day of the accident until after she fell, as her undisputed testimony shows, then appellant was negligent, and appellee was not guilty of contributory negligence, and the trial court properly submitted the case to the jury.

Wilbourn v. Charleston Cooperage Co., 172 Miss. 290, 90 So. 9; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; City of Meridian v. McBeath, 80 Miss. 485, 32 So. 53; Birdsong v. Town of Mendenhall, 97 Miss. 544, 52 So. 795; Gould v. Town of Newton, 157 Miss. 111, 126 So. 826; Whitfield v. City of Meridian, 66 Miss. 570, 6 So. 244; City of Greenville v. Middleton, 124 Miss. 310, 86 So. 804.

It appears that if this criticized instruction of appellee is subject to the criticism made by appellant, it was cured and rendered harmless by the two instructions of appellant which required the jury to believe that the floor was in an unsafe condition before they could return a verdict for plaintiff.

Pannell v. Glidewell, 146 Miss. 565, 111 So. 571; Y. & M. V. R. R. Co. v. Mullen, 158 Miss. 744, 131 So. 101; Curry v. Lucas, 181 Miss. 720, 180 So. 397.

Plaintiff was under no duty to submit the issue of contributory negligence to the jury.

Y. & M. V. R. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; M. & O. R. R. Co. v. Campbell, 114 Miss 803, 75 So. 534; Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, 67 So. 693; G. & S. I. R. R. Co. v. Simmons, 153 Miss. 327, 121 So. 144; Lindsay Wagon Co. v. Nix, 103 Miss. 114, 67 So. 459.

Appellant sought to cross-examine the witness, Gregory Scarborough, as to the details of the alleged conviction of desertion. Whereupon, appellee objected upon the grounds: (1) that desertion from the Army in time of peace did not involve either the truth and veracity of the witness or any moral turpitude, and (2) that proof of the conviction and details of the alleged crime could not be shown by cross-examination after the witness had denied the conviction, but that such conviction could only be shown by the introduction of the original or properly verified copy of the judgment of conviction. We submit that the trial court properly sustained this objection.

Powers v. State, 156 Miss. 316, 126 So. 12; Lawson v. State, 161 Miss. 719, 138 So. 361; Cooksey v. State, 175 Miss. 82, 166 So. 388; Midkiff v. State (Ariz.), 243 P. 601; Burgess v. State of Maryland (Md.), 155 A. 153, 75 A. L. R. 1471; Daughdrill v. Daughdrill, 180 Miss. 589, 178 So. 106; State ex rel. Atty.-Gen. v. McDonald, 164 Miss. 405, 145 So. 508, 86 A. L. R. 290.

The alleged statement by the witness, Scarborough, to the attorney, McKee, could not have been introduced by direct evidence as part of appellant's case because (1) what Scarborough might have said to McKee was merely hearsay, and (2) Scarborough was not shown to be the agent of appellee and any statement by him to McKee would not be binding upon appellee since she had no connection with the statement; and the alleged statement was, therefore, collateral, and as such was incompetent, irrelevant, and immaterial. This being true, it was incompetent...