Carl's Markets v. DeFeo

• Citation: 55 So.2d 182
• Parties: CARL'S MARKETS, Inc., v. DE FEO et ux.
• Decision Date: 02 February 1951
• Court: United States State Supreme Court of Florida

Page 182

55 So.2d 182

CARL'S MARKETS, Inc., v. DE FEO et ux.

Supreme Court of Florida, en Banc.

Feb. 2, 1951.

On Rehearing Oct. 12, 1951.

Rehearing Denied Dec. 7, 1951.

Dixon, DeJarnette & Bradford, Miami, for appellant.

Hamilton & Langbein, West Palm Beach, for appellees.

ROBERTS, Justice.

The plaintiff Mayme DeFeo, one of the appellees here, slipped on a string bean and fell, while shopping in defendant's self-service grocery store. Thereupon Mrs. DeFeo and her husband filed suit to recover their respective damages for the injuries sustained by Mrs. DeFeo. Verdict was for the plaintiffs, and the defendant has appealed from the judgment entered by the court below.

We think that this case is controlled by the decision of this court in Clyde Bar, Inc., v. McClamma, 152 Fla. 118, 10 So.2d 916, wherein it was stated: 'Appellee [appellant] was not an insurer of appellant's [appellee's] physical safety while in the premises. Its duty was to maintain the premises in a reasonably safe condition. To discharge that duty it was obligated to exercise that degree of care and prudence which an ordinary prudent person would ordinarily exercise. Appellee was charged with the duty of observing the premises and exercising lawful care for her own safety. Negligence will not be presumed merely because of the happening of an accident. It does not appear that the danger was hidden. If appellee had exercised lawful care she would have seen the danger if any there was. Her failure to use lawful care makes her own negligent act the proximate cause of her injury.'

As in the Clyde Bar, Inc., case, it is also our conclusion here that no actionable negligence was shown. And, as stated in that case, 'In reaching this conclusion we are not unmindful of the rule contended for by appellee that negligence vel non is a question of fact for the jury. This rule does not govern however, where only one reasonable interpretation can be drawn from the facts. In the latter event the question of negligence vel non becomes a question of law.'

For the reasons stated, the judgment appealed from should be and it is hereby

Reversed.

SEBRING, C. J., and THOMAS and ADAMS, JJ., concur.

TERRELL, J., dissents.

CHAPMAN and HOBSON, JJ., not participating.

On Rehearing Granted.

PER CURIAM.

Affirmed.

CHAPMAN, ADAMS and HOBSON, JJ., concur.

TERRELL, J., concurs specially.

SEBRING, C. J., and THOMAS and ROBERTS, JJ., dissent and adhere to Opinion of February 2, 1951.

TERRELL, Justice (concurring specially).

October 15, 1946, Mayme DeFeo was a customer in Carl's Markets, Inc., a self service food store of the Supermarket type, located at Miami Beach. She slipped on a green bean, fell to the floor and sustained serious bodily injuries. This action was brought by her and husband Jerry DeFeo to recover damages for personal injuries due to the alleged negligence of defendant. The trial resulted in a judgment in favor of Mayme DeFeo for $15,000. Consequential damages were awarded Jerry DeFeo in the sum of $4,500. Final judgment was entered for the plaintiffs in these amounts and the defendant appealed. August 3, 1950, Jerry DeFeo died. Mayme DeFeo was appointed administratrix of his estate. She is defending this appeal in her own right and as the representative of her deceased husband.

The first question urged for our determination challenges the order of the trial court overruling the motion of defendant for an instructed verdict at the conclusion of the testimony, the predicate for the motion being that there was no proof of negligence.

It is admitted that appellee slipped on a green bean and fell while she was a customer in defendant's store. The evidence shows that the accident occurred about 11:30 A.M., that the floor had been swept about fifteen minutes before, that appellant had no knowledge of the bean on the floor or how long it had been there before the plaintiff's fall. Appellant contends that under such circumstances, it is not the insurer of the safety of its customers but is required to exercise reasonable care only to see that the premises are kept in safe condition It is further contended that the trial court recognized this to be the rule and instructed the jury accordingly.

Reasonable care was without question the rule governing stores and many other business places in the old day when the proprietor had his breakfast by candle light and tailored his place of business, and had it ready for customers before sun up. Such was the store that generated the reasonable care rule, it was a general merchandizing establishment, the food section occupied space in the rear and the invoice consisted of a cracker barrel, a box of white bacon, a few barrels of flour and sacks of water ground meal, a hogshead of sugar, several cases of can goods, a few caddies of plug tobacco, a barrel of kerosene, several boxes of barber pole candy, some cartons of snuff, spices, salt, soda, fresh meats on Saturday and green groceries according to the season. Trace chains, horse collars, back bands and plow handles often got mixed up with the groceries. Nothing was screened, the house fly was everywhere in evidence and the germ theory was in the future. There was an accommodating yokel dressed in jean trousers and a hickory shirt to serve the customer. The floors were of rough boards, Pop purchased the family groceries and wore shoes that did not turn easily. The customers came in singles, took their turn with the clerk and the store was kept open till bed time and longer if those who came wanted to discuss the fate of the nation around the cracker barrel.

The modern food store of the self serving super market variety is a very different institution. It is said to have had its origin about 90 years ago when George H. Hartford organized the first unit in Manhattan, out of which came the Great Atlantic and Pacific Tea Company. In 1936 it commenced self service supermarketing in foods and other houselhold articles and now has more than 4500 stores doing more than three billion dollars of business per year. Some of the other large self serving chains are Safeway, Kroger and First National. Piggly Wiggly, Hinke and Pillot, Big Bear, Food Fair, American Stores and dozens of others are among the independent and smaller chains. Some of them have developed into onestop trading centers where the housewife not only buys the groceries for the week but she may purchase many other articles used in the home. She can get her hair marcelled and her husband can go along and get a shave and a hair cut.

The indicia of the modern self serving food store is the...