Cogswell v. C. C. Anderson Stores Co, 7383

Citation192 P.2d 383,68 Idaho 205
Decision Date01 April 1948
Docket Number7383
PartiesCOGSWELL et ux. v. C. C. ANDERSON STORES CO
CourtUnited States State Supreme Court of Idaho

Appeal from District Court, Eleventh Judicial District; Twin Falls County; James W. Porter, Judge.

Reversed and remanded with directions.

Marshall Chapman and Lawrence B. Quinn, both of Twin Falls, for appellant.

No presumption of negligence arises from the mere fact that a customer sustains an injury while on the premises, the doctrine of res ipsa loquitur not being applicable to such a case. Martin v. Brown, 56 Idaho 379, 54 P.2d 1157; Herrick v. Breier, 59 Idaho 171, 82 P.2d 90; Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 44 P.2d 405; Shoemaker v. Mountain States Telephone & Telegraph Co., D.C. 17 F.Supp. 591.

Mere proof of fact of occurrence of accident or injury does not shift burden of proof from respondents or create a presumption of negligence on part of appellant. Instead, the presumption was and is that appellant exercised due care for the protection of the respondent, Ella J. Cogswell, and that presumption of due care continues unless and until overcome by a preponderance of competent evidence adduced in said action. Sears, Roebuck & Company v. Peterson, 8 Cir., 76 F.2d 243; Campbell v. F. W. Woolworth &amp Co., 8 Cir., 117 F.2d 152; Montgomery Ward & Co. v Lamberson, 9 Cir., 144 F.2d 97.

The court committed reversible error in overruling appellant's objections to the inflammatory and objectionable statements of counsel for respondents in his argument to the jury, and court's refusal to instruct the jury to disregard such remarks. Stewart v. City of Idaho Falls, 61 Idaho 471, 103 P.2d 697; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783; Watkins v. Mountains Co-op. Irrigation Co., 33 Idaho 623, 197 P. 247; Rasicot v. Royal Neighbors of America, 18 Idaho 85, 108 P. 1048, 29 L.R.A.,N.S., 433, 138 Am.St.Rep. 180.

Where passion and prejudice evidently entered into the jury's deliberations not only as to the amount of the verdict but as to contributing to its returning any verdict at all, the verdict is vitiated and the only constitutional protection is to grant a new trial. Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717; Neil v. Idaho & Washington N. R. R., 22 Idaho 74, 125 P. 331; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Olson v. Northern Pac. Ry. Co., 49 Wash. 626, 96 P. 150, 18 L.R.A.,N.S., 209; Puget Sound Lumber Co. v. Mechanics' & Traders' Ins. Co., 168 Wash. 46, 10 P.2d 568; Leek v. Northern Pac. Ry. Co., 65 Wash. 453, 118 P. 345.

Rayborn & Rayborn and Harry Povey, both of Twin Falls, for respondents.

Negligence of appellant in maintaining a dangerous and unsafe exit from its store was established by evidence and justified verdict and judgment and trial court properly overruled motions for nonsuit, directed verdict and for new trial. Hall v. Boise Payette Lumber Co., 63 Idaho 686, 125 P.2d 311; Tyler v. F. W. Woolworth Co., 181 Wash. 125, 41 P.2d 1093; Peters v. Schillig-Scott Lbr. Co., 107 Colo. 310, 111 P.2d 898; Restatement of the Law-Torts and Negligence, sec. 343; Emmons v. E. P. Charlton & Co., 63 Wash. 276, 115 P. 163; Roach v. Wells Fargo Bank & Union Trust Co., 102 Cal.App. 380, 282 P. 967; Moore v. Marshall, 41 Cal.App.2d 490, 107 P.2d 89.

There was no misconduct of counsel during the trial. Judgments should never be reversed by reason of misconduct of counsel unless the appellate court is of the opinion that such misconduct had prevailing influence upon the jury to the detriment of appellant. Theriault v. California Ins. Co., 27 Idaho 476, 484, 149 P. 719, Ann.Cas.1917D, 818; Haverland v. Potlatch Lumber Co., 34 Idaho 237, 200 P. 129; Stewart v. City of Idaho Falls, 61 Idaho 471, 103 P.2d 697; Lightner v. Russell & Pugh Lumber Co., 52 Idaho 616, 17 P.2d 349; Watkins v. Mountain Home Co-op. Irr. Co., 33 Idaho 623, 638, 197 P. 247; Bates v. Price, 30 Idaho 521, 166 P. 261; De Lamater v. Little, 32 Idaho 358, 360, 182 P. 853.

Holden, Justice. Givens, C. J., and Hyatt, J., concur. Miller, Justice, concurring and dissenting. Budge, Justice, dissenting.

OPINION

Holden, Justice.

This is an action to recover damages for personal injuries sustained by respondent Ella J. Cogswell, wife of respondent F. L. Cogswell, as the result of a fall at the exit of a store owned and operated by C. C. Anderson Stores Company (hereinafter called the Company), at Twin Falls, Idaho. The Company operated its store in a building leased by it from Lulu Herriott, the owner. At the beginning of the trial, on motion, Lulu Herriott, made a defendant in the action along with the Company, was dismissed, judgment of dismissal being later entered.

The action continued against the Company and was tried on the complaint of respondents, F. L. Cogswell and Ella J. Cogswell, and the answer thereto of the Company. The Company's answer denied all the material allegations of the complaint, and then and by further answer alleged that "Ella Cogswell's fall and injury, if any, sustained by her, was caused by her own negligence and carelessness, and by her failure to observe her surroundings."

The cause was tried by the court sitting with a jury. The jury returned a verdict against the Company for general and special damages in the sum of $ 13,165.60. From the judgment entered on the verdict the Company appeals to this court.

It appears from the record that about five o'clock in the evening of October 20, 1945, respondent Ella J. Cogswell entered one of appellant's Twin Falls stores to pick up some curtains purchased a few days before. The store has two entrances, one on Second Street West and the other on Second Avenue West. Respondent Ella J. Cogswell entered the store through the Second Street West entrance. After about ten to fifteen minutes, being unable to find a clerk, and noticing an exit on Second Avenue West, she decided to leave the store through that exit, and, while passing through the exit, fell, sustaining certain injuries, to recover damages for which this action is prosecuted. The exit consisted of "two little swinging [glass] doors", with a solid strip at the bottom ten inches in height. It was lighted. The glass extended down the door to within from ten to twelve inches of the bottom, the doors being practically flush with a six-inch step down. Where one was going out there was no guard rail or anything to hold onto or any sign or warning at or near the exit to call attention to the doors and the abrupt step down.

While the Company specifies twenty-two errors, it argues and cites cases in support of only five. We will discuss the latter in the order stated by appellant:

"(1) The insufficiency of the evidence to establish any negligence on the part of the appellant, C. C. Anderson Company, a corporation".

Respondent Ella J. Cogswell, insofar as material on the question of the insufficiency of the evidence, testified on direct examination:

"Q. An how long would you say you were in the store? A. Not over ten or fifteen minutes.

"Q. And then did you leave the store? A. Yes.

"Q. By what entrance did you leave? A. The Second Avenue entrance, across from the Canal Company.

"Q. And are there swinging doors at that entrance? A. Yes.

"Q. Were you carrying anything when you went out there? A. No.

"Q. What happened when you went out the door, Mrs. Cogswell? A. Well I just hardly know, I just fell, just fell right out on the street.

"Q. You never had been out that door before? A. No.

* * * *

"Q. Was there any sign there of any kind that you saw?

* * * *

"A. No, there was none.

"Q. No sign there. Do you know whether or not there is any guard rail or anything to hold to as you go out that door?

* * * *

"A. No.

* * * *

"Q. Do you recall whether or not the door-that you come out of are glass or whether they are solid doors at the C. C. Anderson Company there? A. Well I just couldn't say for sure.

"Q. Did you see any step that steps down directly after the door opens? A. No."

On cross-examination, she testified:

"Q. And you say these doors were glass doors? A. I haven't said because I didn't look at them.

"Q. Well I misunderstood you then, I understood you to tell Mr Rayborn that the doors, the swinging doors there were glass doors. A. I am not sure.

"Q. You don't know whether they were glass doors or not? A. No.

"Q. If they were glass doors you have no recollection of having looked through those glass doors? A. No.

"Q. So far as you know they could have been glass or they could have been solid? A. Yes.

"Q. You went through the doors and how soon did you fall after you went out of the door Mrs. Cogswell? A. Well I guess right away, I haven't any recollection. I know I was on the sidewalk as soon as I --.

"Q. Went out the door? A. Yes.

"Q. And how far away were you Mrs. Cogswell when you first saw the doors? A. What was that?

"Q. You said you wandered around the store and you came to this Second Avenue door there and decided to come out them, how far away were you when you first saw those doors, from the doors? A. Not very far, I couldn't say.

"Q. Well were you by the counter when you saw that or the hall? A. No, I think there was some clothes hanging up there.

"Q. And you were looking at those? A. Yes.

"Q. And then you glanced over and saw this door? A. Yes.

"Q. And can you give us your best judgment how far away were you from the doors then? A. Oh I don't know that I could say, about eight or ten feet, I couldn't say.

"Q. And then after you noticed the doors and decided to go out the doors you walked this eight or ten feet or whatever that distance was to the doors? A. Yes.

"Q. And then you opened the swinging doors, you could tell they were swinging doors? A. No. I couldn't tell...

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