Commercial Credit Corp. v. Varn

• Decision Date: 27 January 1959
• Docket Number: No. A-67,A-67
• Citation: 108 So.2d 638
• Parties: COMMERCIAL CREDIT CORPORATION Appellant, v. Rita VARN, Appellee.
• Court: Florida District Court of Appeals

Page 638

108 So.2d 638

COMMERCIAL CREDIT CORPORATION Appellant, v. Rita VARN, Appellee.

No. A-67.

District Court of Appeal of Florida, First District.

Jan. 27, 1959.

Holsberry, Holsberry & Emmanuel, Pensacola, for appellant.

Jones & Harrell and David H. Levin, Pensacola, for appellee.

THORNAL, Associate Judge.

Appellant Commercial Credit Corporation seeks reversal of a judgment entered pursuant to a jury verdict in favor of appellee Varn who was plaintiff below in an action for damages.

The point to be determined was whether there was any evidence on which the jury could base a verdict for the appellee Varn.

Appellee Varn, 74 years of age, was a business invitee of the appellant Commercial Credit Corporation when she entered its office to pay a bill. Allegedly while walking across approximately the middle of the lobby of the office, which measured 8 X 17 feet, appellee 'skidded' and fell, sustaining severe injuries. She filed suit alleging that the appellant-defendant 'negligently and carelessly maintained the floor of the premises * * * in that it allowed the same to become and remain in a condition not reasonably safe to accommodate the plaintiff'. She alleged that the condition was known or should have been known to the defendant. The trial judge denied appellant's motion for a directed verdict and the jury rendered a verdict for the appellee. After denying appellant's motion for a new trial, judgment was entered on the verdict. Reversal of the judgment is now sought.

Appellant contends that the record is devoid of any evidence to support a conclusion that it was guilty of negligence.

Appellee contends that there was an adequate circumstantial basis from which the jury could properly infer the presence of negligence.

Inasmuch as the issues have been passed upon by a jury, the burden of the appellant is to demonstrate that there was no evidence whatever upon which a verdict could properly be based. All of the testimony must be read on appeal in the light most favorable to the appellee. It is not our function to consider the credibility of the witnesses or the weight to be given to particular testimony if in fact there was testimony to support the conclusions of the jury.

A careful examination of the record leads inescapably to the conclusion that there was a total absence of any evidence on the salient points dealing with the presence of negligence as the cause of the fall. The appellee herself testified that she did not see any 'banana peel' or foreign substance on the floor and that she did not know what she slipped on. Other witnesses testified that they looked at the floor immediately at the time of appellee's fall and there was absolutely no object or other substance on the floor. There were no skid marks or tracing of wax either on the floor or on appellee's shoe. There was evidence that since the floor had last been waxed hundreds of people had walked over it without unusual incident. The only effort made by appellee to establish the dangerous condition of the floor was the testimony of three so-called experts who stated that if a waxed floor were maintained as appellant's janitor testified, then over a period of time the result would be the 'building up' of an accumulation of wax that would produce a slippery condition. Two of appellee's experts subsequently testified that the passage of pedestrian traffic over the waxed area would have a tendency to reduce the accumulation of wax to a less hazardous condition. There was no direct testimony whatsoever as to the condition of the floor, the presence of an accumulation of wax, the presence of skid marks or any other aspect of proof customarily found in cases of this nature and going to establish the existence of the...