Carlisle v. J. Weingarten, Inc., 10618.

CourtCourt of Appeals of Texas
Writing for the CourtCody
Citation120 S.W.2d 886
Docket NumberNo. 10618.,10618.
Decision Date20 October 1938
120 S.W.2d 886
No. 10618.
Court of Civil Appeals of Texas. Galveston.
October 20, 1938.
Rehearing Denied November 3, 1938.

Page 887

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Ella Jo Carlisle, by next friend, W. J. Carlisle, against J. Weingarten, Inc., for injuries sustained when she tripped over carton in store of defendant. From judgment directing verdict for defendant, plaintiff appeals.


W. H. Hanson and B. C. Johnson, both of Houston, for appellant.

Wood & Morrow and M. S. McCorquodale, all of Houston, for appellee.

CODY, Justice.

The principal question in this case is this: Is a child that accompanies his mother to a store an invitee or licensee of such store, where the mother is in the store in the capacity of customer, but the child accompanies the mother solely as a matter of his and his mother's convenience, and not as a customer or prospective customer, nor to assist in carrying purchases?

Appellant, who was plaintiff below, is the daughter of Mr. and Mrs. Carlisle, and on July 22, 1935, was between eight and nine years old. On that day Mrs. Carlisle's brother gave her a list of groceries which he wanted her to buy for him, and she went to one of appellee's stores for the purpose of making the purchases. She took her two children with her (i. e., appellant and a son who was then about six years old) because she had no one to leave them with at home. She was accompanied also by a niece, who was from out of town, and who was sixteen years old. The grocery department was run on the "serve yourself" plan, being fenced off from the rest of the store, with the entrance thereto being through turnstiles, and having baskets furnished by the store for customers to use to place the articles they selected from the display on the shelves. At the exit from such department checkers were stationed to check purchases, and see that the correct charges were made. The articles which were exposed for sale were displayed on shelves, which were on either side of aisles through which customers passed in making the selections of their purchases. These aisles were about six feet wide.

On the occasion in question Mrs. Carlisle was in the grocery department, with her niece and children. She and her niece both had baskets, and were passing down an aisle, followed by her children. She heard appellant scream, and looked back and saw appellant lying sprawled on a pasteboard carton, with...

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5 cases
  • Thacker v. JC Penney Company, 16561.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 mai 1958, is "under an obligation to extend to the child the protection of an invitee". Carlisle v. J. Weingarten, Inc., Tex.Civ.App.1941, 120 S.W. 2d 886; Id., 137 Tex. 220, 152 S.W.2d 1073 at page 1077.6 Unlike the attractive nuisance cases, where the difficulty is in finding an affirmative ......
  • Johnson v. Macias, 13472.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 janvier 1952
    ...the same to an implied as to an express invitee. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S. W.2d 1073, reversing Tex.Civ.App., 120 S.W.2d 886; Russell v. Liggett Drug Co., Tex.Civ.App., 153 S.W.2d 231; Fort Worth & D.C. Ry. Co. v. Hambright, Tex.Civ. App., 130 S.W.2d 436; 30 Tex.......
  • Weinberg v. Hartman
    • United States
    • Superior Court of Delaware
    • 13 avril 1949
    ...15 N.E.2d 64; L. S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d 195, 356; Carlisle v. J. Weingarten, Inc., Tex.Civ.App., 120 S.W.2d 886; Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356; Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559; Grogan v. O'Keefe's, Inc., 267 Mass. ......
  • J. Weingarten v. Carlisle, 11533.
    • United States
    • Court of Appeals of Texas
    • 20 mai 1943
    ...the first one having come here from an instructed verdict against her, which determination was affirmed by this court, as reported in 120 S.W.2d 886, in Carlisle v. J. Weingarten, Inc., on a holding that the minor had been a mere licensee upon the appellant's premises, to whom it owed no du......
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