Certified T. V. & Appliance Co. v. Harrington

• Decision Date: 22 June 1959
• Docket Number: No. 4955,4955
• Citation: 109 S.E.2d 126,201 Va. 109
• Parties: CERTIFIED T.V. AND APPLIANCE COMPANY, INCORPORATED v. CATHERINE HARRINGTON. Record
• Court: Virginia Supreme Court

Page 126

109 S.E.2d 126

201 Va. 109

CERTIFIED T.V. AND APPLIANCE COMPANY, INCORPORATED v. CATHERINE HARRINGTON.

Record No. 4955.

Supreme Court of Appeals of Virginia

June 22, 1959.

Robert G. Winters (George Pilcher, Jr.; Pilcher, Underwood, Pilcher & Winters, on brief), for the plaintiff in error.

Calvin Breit (Robert S. Cohen; Babalas & Breit, on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

Catherine Harrington, hereinafter referred to as the plaintiff, filed a motion for judgment against Certified T.V. and Appliance Company, Incorporated, hereinafter referred to as the defendant, for damages sustained while a customer in the defendant's place of business when a shelf displaying television sets collapsed and fell on her, causing bodily injuries. The case was tried by a jury and resulted in a verdict in favor of the plaintiff in the amount of $12,500.00. The trial court entered a judgment on the verdict and we granted a writ of error and supersedeas.

In its assignment of errors the defendant contends that the court erred as follows:

(1) In refusing to grant instructions numbered 2, 3, 4, and 5, based on defendant's theory of the case that the negligence of the independent contractor in constructing the shelf created dangerous hidden defects which could not be discovered by a reasonable inspection, thereby relieving the defendant of liability for injuries to the plaintiff;

(2) In refusing to grant defendant's instruction number 7, which would have told the jury that under the Rules of Court the defendant could not implead the independent contractor who was the tortfeasor guilty of negligence, which was the sole proximate cause of the accident;

(3) In overruling the defendant's motion to prohibit plaintiff's use of the blackboard in the summation argument, on which her counsel placed improper suggestions of the items of evaluation of plaintiff's injuries to be considered by the jury in assessing damages; and

(4) In overruling defendant's motion to set aside the verdict on the ground that the plaintiff did not prove that the defendant failed to warn her of the imminent danger and condition of the shelf.

The plaintiff having prevailed in the lower court, the facts will be stated in the light most favorable to her.

On March 9, 1957, at approximately 5 P.M., the plaintiff, enceinte, with her husband and young child, entered the defendant's store to purchase a television set. While the plaintiff's husband was being shown various sets by an officer of the defendant company he noticed that the shelf on which many sets had been placed for display was 'weaving' and he exclaimed, 'That shelf is loose!' The officer of the defendant company said, 'Oh, that is all right. It has been like that. We are getting it fixed. ' Almost simultaneously with this conversation the shelf with the television sets collapsed and fell on top of the plaintiff and her son, pinning her to the floor and causing her bodily injuries.

The plaintiff's husband testified that immediately after the accident the officer of the corporation who was waiting on him stated to Police Officer Davis that, 'The shelf has been loose like that. It has been like that for a couple of weeks. ' This statement was substantially corroborated by Officer Davis and witness Gibbons.

The contract for the construction of the shelf was entered into in October, 1954, by the defendant, on a cost plus basis, with the contractor who constructed the building leased by the defendant in the city of Norfolk while it was under construction. The shelf was 48 inches above the base platform and constructed in two sections, each section being 16 feet long and 27 inches wide. They were constructed with two pieces of lumber 2 by 4's, 16 feet long, with 2 by 4 cross bracing between and 3/4-inch sheathing nailed on top. Each section was secured to a wall by four sixpenny nails which were countersunk through the 2 by 4 pieces along the wall with a nail set until they were driven into the plastered wall. The sections were supported on the front by four pipes covered with chrome shower curtain rods, secured to the base platform and the shelf by pressed chrome metal flanges which were fastened by two screws each.

The construction of the shelf was completed in the early part of 1955. The work was accepted and paid for by the defendant shortly after completion.

From the day the shelf was accepted and the work paid for until March 9, 1957, when the shelf displaying portable television sets collapsed, only one inspection was made by the defendant company and that inspection was made approximately one year before the injury to the plaintiff. For nearly two and one-half years after the shelf was installed the owners and employees of the defendant company placed and replaced table model television sets on it.

An expert contractor testified on behalf of the defendant that the shelf was not properly constructed and installed and that the defects could not be ascertained from an inspection of the finished shelf.

Defendant's first assignment of error deals with the refusal of the court to grant instructions numbered 2, 3, 4 and 5 offered by it. They were all based on the theory that the negligence of an independent contractor, resulting in hidden defects, created an intrinsically or inherently dangerous condition which could not be discovered by a reasonable inspection, thereby relieving defendant of the liability for any injuries to the plaintiff.

The defendant relies on Roanoke Railway Co. v. Sterrett, 108 Va. 533, 539, 62 S.E. 385, 387, in support of its argument that the instructions should have been given. In that case, which was decided on September 10, 1908, this court held that a street railway company is not liable for injuries sustained by a passenger resulting from the collapse of one of its bridges where it appears that the bridge was made by a competent and reliable manufacturer; was frequently and properly inspected; that the collapse was due to an imperfect weld in a cord which supported the bridge; and that the defect was hidden and could not have been discovered by the utmost scrutiny. The case fell in the category of an unavoidable accident which human care and foresight could not guard against.

The principle of law laid down in the Roanoke case has no application to the facts in this case. In the present case the evidence warrants the jury in finding that the defendant was guilty of negligence for failure to exercise ordinary care to inspect the shelf and for its failure to remedy and repair the known dangerous condition prior to the plaintiff's injury. The condition of the shelf was not such as could not be guarded against by reasonable care and foresight.

In McCrorey v. Thomas, 109 Va. 373, 378, 379, 63 S.E. 1011, 1013, 17 Ann.Cas. 373, decided on March 11, 1909, several months after Roanoke Railway Co. v. Sterrett, supra, involving a somewhat similar factual situation as the case at bar, this court held that it was not error to refuse an instruction embodying the same principles of law set out in defendant's instructions 2, 3, 4 and 5.

The defendant's second assignment of error is directed to the refusal of the court to grant instruction number 7, which would have told the jury that under the Rules of Court the defendant could not implead the independent contractor who was the tort feasor guilty of negligence, which was the sole proximate cause of the accident. The instruction was properly refused. It sought to shift the responsibility of the defendant for its lack of reasonable care in keeping the shelf in a safe condition to the independent contractor.

The defendant's third assignment of error is directed to the use of a blackboard by plaintiff's counsel in his summation argument, on which he placed improper suggestions of items of evaluation of plaintiff's injuries to be considered by the jury in assessing damages.

As to this assignment of error, the record shows that 'during the argument' the following occurred:

'Mr. Pilcher: The defendant objects to the use of the blackboard by the plaintiff in its summation argument, on which blackboard there is listed the items of special damages, as well as suggested amounts for future pain and suffering and future damages. The blackboard discloses: Dr. Shoenfeld's bill of $40.00, Dr. Vann's bill of $110.00, Dr. Alpert's bill...