Custer v. Atl. & Pac. Tea Co.

Decision Date07 August 1945
Docket NumberNo. 305.,305.
Citation43 A.2d 716
PartiesCUSTER v. ATLANTIC & PACIFIC TEA CO.
CourtD.C. Court of Appeals

OPINION TEXT STARTS HERE

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Joan Marie Custer, infant, by her next friend, Mary Elizabeth Custer, against Atlantic & Pacific Tea Company for personal injuries resulting from the explosion of a bottle of carbonated beverage in one of the defendant's stores. From a judgment for defendant on opening statement, the plaintiff appeals.

Reversed and remanded with instructions to award a new trial.

A. M. Goldstein, of Washington, D. C. (Emmett Leo Sheelhan, of Washington, D. C., on the brief), for appellant.

George F. Hurley, of Washington, D. C. (Feldman, Kittelle, Campbell & Ewing, of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

This is an appeal from a judgment which followed a verdict directed by the court on the opening statement of plaintiff's counsel. The infant plaintiff had sued for personal injuries resulting from the explosion of a bottle of carbonated beverage in one of defendant's stores. The bottlers of the beverage, a Baltimore partnership, were named as defendants, but apparently could not be served with process and so were not before the court.

In his opening statement, counsel stated that the proof would show: That the plaintiff, then twenty months of age, accompanied by her mother, went to store of defendant, it being the mother's purpose to buy groceries there; that mother and daughter were in the aisle of the store (described as the self-service type of store) and the mother was in the act of selecting certain groceries; that on both sides of the center aisle, defendant ‘kept and maintained’ bottles of charged water and ginger ale; that while the mother turned to reach for some canned groceries, and the child was some 4 or 5 feet away from her in the middle of the aisle, one of the bottles exploded, causing flying glass to strike the child about the face, resulting in permanent injuries and disfigurement.

When the opening statement had been concluded, defendant moved for an instructed verdict on the grounds (1) that the doctrine of res ipsa loquitur did not apply, and (2) that the infant plaintiff was a mere licensee and not an invitee. The trial judge granted the motion and took the case from the consideration of the jury.

It should be said at once that this infant plaintiff enjoyed the status of an invitee to whom the defendant owed the duty of ordinary care, and not that of a mere licensee to whom it would have owed no duty except not willfully to do her harm. It was error to rule otherwise. We think it requires no elaborate reasoning to reach the conclusion that a 20-month old child accompanying its mother on a shopping mission has the same status as the mother. This case is totally unlike those based on the attractive nuisance doctrine. Compare Branan v. Wimsatt, 54 App.D.C. 374, 298 F. 833, where a boy 12 1/2 years old, playing in a lumber yard, was held to be a mere licensee. And note that in a later case the Court referred to that decision as having been reached ‘largely because the child was 12 1/2 years old and fully conscious of the danger.’ Eastburn v. Levin, 72 App.D.C. 190, 113 F.2d 176, 177. Here the situation is quite different. Defendant, in maintaining a retail store impliedly invited the mother to come upon the premises. And by every consideration of custom and usage and common sense, such invitation extended to and included the mother's infant child. Grogan v. O'Keefe's, Inc., 267 Mass. 189, 166 N.E. 721; Wheaton v. Goldblatt Bros., 295 Ill.App. 618, 15 N.E.2d 64; L. S. Ayres & Co. v. Hicks, Ind.Sup., 40 N.E.2d 334; Carlisle v....

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14 cases
  • Cooper v. Anderson, 36812
    • United States
    • United States Court of Appeals (Georgia)
    • 4 Diciembre 1957
    ...which we have referred. Our opinion in this regard is fortified by similar holdings in many other jurisdictions. Custer v. Atlantic & Pacific Tea Co., D.C. Mun.App., 43 A.2d 716; Milliken v. Weybosset Pure Food Market, 77 R.I. 312, 44 A.2d 723; Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356; W......
  • Braughton v. United Air Lines, Inc.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 1 Junio 1960
    ...is invited to enter on the premises of another. See, Grogan v. O'Keefe's Inc., 267 Mass. 189, 166 N.E. 721; Custer v. Atlantic & Pacific Tea Co., D.C.Mun.App., 43 A.2d 716. We can see no legal rhyme or reason why that legal axiom should not be applied to a child accompanying a parent who is......
  • Weinberg v. Hartman
    • United States
    • Superior Court of Delaware
    • 13 Abril 1949
    ...referred to); Pellicot v. Keene, 181 Md. 135, 28 A.2d 826 assumed child was invitee; Custer v. Atlantic & Pacific Tea Co., D.C.Mun.App., 43 A.2d 716; Milliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723, (assuming without discussion that plaintiff was invitee); Wheaton v. Goldbl......
  • Murphy v. Kelly
    • United States
    • New Jersey Superior Court – Appellate Division
    • 16 Noviembre 1953
    ......Atlantic & P. Tea Co., 91 N.J.L. 145, 102 A. 700, L.R.A.1918C, 179 (E. & ...        Custer v. Atlantic & P. Tea Co., 43 A.2d 716, 717 (Mun.Ct.App., ......
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