Carls Markets, Inc. v. Meyer

• Decision Date: 28 July 1953
• Citation: 69 So.2d 789
• Parties: CARLS MARKETS, Inc. v. MEYER et al.
• Court: Florida Supreme Court

Page 789

69 So.2d 789

CARLS MARKETS, Inc. v. MEYER et al.

Supreme Court of Florida, Division B.

July 28, 1953.

Rehearing Denied Dec. 8, 1953.

Dixon, DeJarnette & Bradford and Duane Anderson, all of Miami, for appellants.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellees.

THOMAS, Justice.

Each of appellees obtained a judgment for damages resulting from the fall of appellee-wife in the super market operated by the appellant. The customer, as she had done for many months, shopped in the store and paid for the goods at the 'check-out counter.' She carried a paper bag of merchandise and a container of Pepsi-Cola. The counter was so arranged that a customer facing the cashier had the exit of the store at the back. When the appellee-wife paid her bill and turned toward the door she suddenly fell headlong.

There was evidence that she slipped in water mixed with vegetable leaves. Two witnesses testified that one of them had slipped just before appellee-wife was injured, while employees of the establishment testified there was no foreign matter at or near the place where the mishap occurred. The jury decided this point in appellees' favor so we will not invade the province of the fact-finding body. We will confine our consideration to the procedure followed by the court and challenged here by the appellant's four questions.

The first of these raises the propriety of the judge's refusal to charge the jury that it was appellees' burden to show knowledge on the part of appellant that foreign substance existed on the floor and that it had been there so long that the appellant was charged with notice of its presence. In substance the sppellant requested that the jurors be charged that they could not indulge in speculation about the way in which the troublesome matter came upon the floor; that if it was placed there by a person other than an employee the defendant would be liable only if the plaintiff established its existence for a sufficient period for the defendant to have discovered it by the exercise of ordinary care.

The judge declined the request and on this subject simply charged the jury that 'The test of the defendant's duties to take reasonable steps to keep the premises reasonably safe is not whether the defendant knew about a particular particle or matter on the floor, but whether it knew or should have known generally that the floor at the time and place in question was likely to have foreign matter on it, and whether it took reasonable steps to remove the matter.'

The judge's view about the inappropriateness of expounding the law on notice may be extracted from his comment during the conference with counsel on the proper charges to be given. He thought that 'if there had been something on the floor which was not reasonable, subject to anticipation by the possessor, somebody, let us say, dropped, say, a rock on the floor or something unusual, why, then I think the doctrine of notice would be quite applicable.' As we understand the ruling after studying these remarks in the light of the record, the judge felt that if an object dissociated from the operation of the store caused the damage the principle would be involved, otherwise not.

With this idea in mind we revert to the pleadings and the testimony. In their original complaint the appellees alleged that the defendant caused 'a large quantity of wet, sloppy or slippery substance or particals [sic] of vegetables to be spilled or placed on the floor in said grocery * * * directly in the path provided for the public' and that when the plaintiff-wife had trod the path she fell.

Had the plaintiffs based their case solely on the creation of a hazard by the operator of the store as they first alleged, we would be inclined to agree that there was no occasion for the charge about notice for if the plaintiffs could convince the jury that the dangerous condition was created by persons connected with the store the matter of notice was inconsequential.

In refutation of the appellant's argument appellees have referred to our opinion in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720, 721, where it was held that the peculiar facts made it unnecessary for the plaintiff to meet the burden of establishing actual or constructive notice of a dangerous condition. In that case it was manifest that the defendant was selling bottled drinks, without providing a place for the deposit of empty bottles which could be expected therefore to roll around underfoot and become hazards to the unwary. In other words, the dangerous obstacles were the creations of the defendant who in effect was on notice as soon as the bottled refreshments were sold. We recognized a 'place of amusement like a race track where patrons go by the thousand * * * and are permitted to purchase and drink bottled beverages * * * and set the empty bottles anywhere they may find space to place them' as an exception to the rule.

Although a 'different rule' was held there to apply we think the underlying principle in that case would be common to this one if issue had been formed only on the initial complaint for the creator of a dangerous condition must by the very fact, know about and be responsible for his creation.

The other decision to which appellees cited us is Carl's Markets, Inc., v. DeFeo, Fla., 55 So.2d 182. We are impelled to point out, with profound deference to the author, that the opinion from which appellees generously quote was a special concurring opinion of one member of the Court in which no other member joined.

But, only a few days before the trial the plaintiffs were permitted to amend their complaint by averring that the defendant negligently allowed the quantity of slippery substance to remain on the floor and that it 'had existed for a long enough period of time on the said floor that the defendant knew or by the exercise of reasonable care should have known of the existence of said condition * * *.' By this count the element of notice was introduced and the judge was obliged to charge the jury, as defendant requested, that if it appeared that any person other than employees and agents of the defendant put the foreign matter on the floor liability on the part of the defendant would follow 'only in the event that the plaintiff * * * established that the foreign matter had remained * * * for a sufficient length of time * * * for the defendant to have discovered the same by the exercise of ordinary care' and to have remedied the condition before the injured person fell.

Although we feel that such a charge was not required by the issue joined on the original count it was necessary by the issue joined on the amended one and that failure to give it was error.

The next question is based on the injection of testimony about the insurance carried by the appellant. To determine whether error crept into the trial because of this reference we should give the prelude to the evidence the appellant insists was improper.

Two persons saw the appellee-wife fall. An investigator representing appellant's insurance carrier made an appointment with the witnesses, and called on them accompanied by a member of appellant's legal staff and a reporter. During the interview a statement of the witnesses was obtained.

Counsel for appellant apprehended that these witnesses were hostile so the judge was requested 'to caution [them] * * * not to volunteer any information about insurance, unless * * * asked a direct question.' The judge declined.

In the course of direct examination one of the witnesses was asked by appellees' attorney if someone solicited a statement about the accident and answered that an...