Daniel v. Jackson Infirmary

• Citation: 163 So. 447,173 Miss. 832
• Decision Date: 30 September 1935
• Docket Number: 31810
• Court: United States State Supreme Court of Mississippi
• Parties: DANIEL v. JACKSON INFIRMARY

163 So. 447

173 Miss. 832

DANIEL v. JACKSON INFIRMARY

No. 31810

Supreme Court of Mississippi

September 30, 1935

Division B

Suggestion Of Error Overruled October 28, 1935.

APPEAL from circuit court of Hinds county HON. JULIAN P. ALEXANDER Judge.

Action by Mrs. Pearl B. Daniel against the Jackson Infirmary. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Alexander & Satterfield, of Jackson, for appellant.

The infirmary had no right, and the jury so found, to use the dance floor as a standard of safety for the use by those whose very presence in its hallways attested their infirmity of body or limb.

It is elementary that an infirmary or hospital is liable for an act or omission of its servants or agents.

Richardson v. Dumas, 106 Miss. 664, 64 So. 459.

If by the act of the defendant its floors are made slippery and dangerous for the use by those whom it is expected to serve it makes no difference what material is used or combination of materials is used, just so that the result creates a dangerous condition. This result may follow the use of improper materials or the excesssive or improper use of ordinary materials.

Hudson v. Woolworth Co., 275 Mass. 469, 176 N.E. 188; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; Kalb v. Fisher, 139 A. 237; Markman v. Bell Stores Co., 132 A. 178; White v. Mugar, 181 N.E. 725; McClarken v. Ralphs Grocery Co., 20 P.2d 66; Ransom v. Kreeger Store, Inc., 158 So. 600; McNeil v. Brown & Co., 22. F.2d 675; Robinson v. Woolworth Co., 261 P. 253; Langley v. Woolworth Co., 131 A. 194; Bloomer v. Snellenburg, 69 A. 1124; Field v. Gowdy, 199 Mass. 568, 85 N.E. 884.

The courts emphasize the necessity for the use of reasonable care by the defendant. This in turn emphasizes that it is for the jury to judge as to whether there was reasonable care. In doing so they would properly consider whether others have probably fallen on the same floor. That others had already done so, as in the instant case, would alone be sufficient evidence of this probability. Hence the maintenance of such a condition is negligence, because it is not reasonably safe.

Gerber v. Smith, 263 S.W. 974; Bradford v. Woolworth Co., 140 S.E. 105; Benesch & Sons v. Ferkler, 139 A. 557; Haverty Furniture Co. v. Jewell, 38 Ga.App. 395, 144 S.E. 46; MacDonald v. F. & W. Grand, Inc., 89 Pa.Super. 526; Scott v. Klines, Inc., 284 S.W. 831; Tack v. Ruffo, 161 N.E. 587; Grzboski v. Bernheimer Leader Stores, 143 A. 706; Woolworth Co. v. Wood, 124 S.E. 110; Woolworth Co. v. Kinney, 169 N.E. 562; Dalgleish v. Oppenheim, etc., Co., 152 A. 759; Woolworth Co. v. Saxton, 177 N.E. 219; Parker v. Great A. & P. Tea Co., 161 S.E. 209; H. F. Hohlt v. Routt, 48 S.W.2d 386; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; S. H. Kress & Co. v. Dyer, 49 S.W.2d 986; Kroger Grocery Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Hall v. Great A. & P. Tea Co., 115 Conn. 698, 160 A. 302; Randolph v. Great A. & P. Tea Co., 2 F.Supp. 463; Woolworth v. Erickson, 127 So. 534.

Certainly the allegations in the case at bar were sufficient. If there was any evidence to support them (and there was cumulative direct testimony thereto) it was for the jury.

Kroger Grocery Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Bowden v. Kress & Co., 198 N.C. 559, 152 S.E. 625; Holmes v. Ginter Restaurant Co., 54 F.2d 876.

The motion for new trial was improperly awarded. It has caused this injured lady untold suffering, inconvenience and expense. She has been compelled to appeal a case she had won. Although, in the meantime pending the second hearing, her injuries were tragically increased by painful operations and her suffering, disability and expense doubled, the former judgment should be reinstated.

McCarty v. Mitchell, 151 So. 567.

Butler & Snow, of Jackson, for appellee.

The rule is undoubtedly as has been announced by the court repeatedly and as stated in appellant's brief, that the defendant hospital owed to the plaintiff, an invitee, the duty to exercise reasonable care to maintain its floors in a reasonably safe condition for plaintiff's use in passing to and fro thereon.

Western Union Tel. Co. v. Blakely, 162 Miss. 854; Kress v. Rockwood, 134 So. 82.

Subject to some limitations, perhaps, it seems to be generally conceded that negligence is not established by showing that an injury might have been prevented by the use of some device or precaution that has not yet been generally adopted.

20 R. C. L., p. 27, sec. 20; Bonawitt v. St. Vincent's Hospital, 182 N.E. 661; Tenbrink v. Woolworth, 153 A. 245; Spickernagle v. Woolworth, 236 Pa. St. Rep. 496; Abbott v. Richmond County Country Club, 207 N.Y.S. 183; Kipps v. Woolworth, 134 N.Y.S. 646; Tyron v. Chalmers, 200 N.Y.S. 362; Wilson v. Werry, 137 S.W. 390; Torbet v. Woolworth Co., 238 N.W. 140; Kipp v. Woolworth & Co., 150 N. Y. A.D. 283.

A person who enters a public place in connection with the business carried on in the premises occupies the position of an invitee (Goodwin v. Nelson Grocery Co., 239 Mass. 232; Radebaugh v. Woolworth Co., 214 Ill.App. 365); and the proprietor only owes to such person the duty of exercising reasonable and ordinary care for his safety.

Quinn v. Utah Gas Co., 42 Utah 113; Plummer v. Dill, 156 Mass. 426; Mona v. Erion, 223 N. Y. A.D. 526; Kipp v. Woolworth Co., 150 N. Y. A.D. 283; Chilberg v. Standard Furniture Co., 115 P. 837, 34 L.R.A. (N.S.) 1079; 66 U. S. Law Review Jan., 1932, issue, p. 47.

The proprietor of premises to which the public is invited may use oil or soap to clean the floors thereof and no liability can be predicated merely upon such use unless negligence in the application of the cleansing element is shown, or the proprietor has notice of the dangerous conditions.

Goodwin v. Nelson Grocery Co., 239 Mass. 232; Radebaugh v. Woolworth Co., 214 Ill.App. 365; Chichos v. Foley Bros. Grocery Co., 73 Mont. 575; Quinn v. Utah Gas, etc., 42 Utah 113; Plummer v. Dill, 156 Mass. 426; Higgins v. Goerke-Kirch Co., 91 N. J. L. 464; Kaufman Dept. Stores, Inc., v. Cranston, 257 F. 917; Schnatterer v. Ramberger, 81 N. J. L. 558; Mona v. Erion, 223 N. Y. A.D. 526; Weller v. Consolidated Gas Co., 198 N.Y. 98; Ruppert v. Heights R. R. Co., 154 N.Y. 90; Kipp v. Woolworth & Co., 150 A.D. 283, 163 A.D. 920; Lavine v. United Paper Board Co., 243 N.Y. 631; Abbott v. Richmond County Country Club, 211 A.D. 232, 240 N.Y. 693; Curtiss v. Lehigh Valley R. R. Co., 233 N.Y. 554; Kerstein v. Goodman, 130 Misc. 714; Kaufman v. Young, 157 N.Y.S. 778; Kroger Grocery & Baking Co. v. Monroe, 34 S.W.2d 929; Kipp v. Woolworth & Co., 150 N. Y. A.D. 283; Tyron v. Chalmers, Nos. 1, 2, 205 A.D. 816, 818; F. W. Woolworth Co. v. Erickson, 127 So. 535.

One traversing a floor, the slippery condition of which is apparent, may, by assuming the risk of accident, relieve defendant of liability.

Cudahy Packing Co. v. Luyben, 9 F.2d 32; Bennett v. McAllister Co., 241 Ill.App. 502; Texas Pacific Coal & Oil Co. v. Grabner, 10 S.W.2d 441; McFarlane v. City of Niagara Falls, 247 N.Y. 340; Zurich General Accident & Liability Co. v. Childs Co., 253 N.Y. 324; Bohlen, Studies in the Law of Torts, p. 441; Smith v. Baker & Sons, L. R. (1891) A. C. 325, 360; Crane v. Jordan Marsh Co., 169 N.E. 136; Kitchen v. Women's City Club of Boston, 166 N.E. 554; Chilberg v. Standard Furniture Co., 63 Wash. 414.

There was no obstruction on the floor and no foreign substance of any kind or character which occasioned plaintiff's fall. Plaintiff relies exclusively upon the fact that she fell on the floor. That the floor was polished and looked slick. No inspection was made thereof to even ascertain if the floor was in reality slick.

The proof is conclusive that over the period of seven or eight years in which the linoleum had been on the floors no one had ever fallen thereon up until the time of the plaintiff's accident, and the floors were in constant use.

OPINION

Griffith, J.

Appellant, an invitee of appellee, while walking from her room on the third floor of appellee's hospital, on Monday, January 1, 1934, fell and broke her arm, which injury she avers was solely because of the highly polished, slick, slippery, and dangerous condition of the waxed linoleum-covered floor of the hallway upon which she was walking. It was shown by the undisputed testimony that the linoleum was the regulation Armstrong Battleship Linoleum of the same type and character in common use in stores, office buildings, and in other public buildings everywhere, and that it was installed in the customary and proper manner; that it was regularly cleaned and waxed on Friday of each week, and on no other day, in which process Fries Paste Floor Wax was used, this being the wax which was recommended for that purpose by the manufacturers of linoleum, and that the waxing was carefully done and the finish thereof was left in the manner as directed by the manufacturer, and that although this particular linoleum had been upon the floors of appellee's hospital for about eight years, and had been regularly cleaned and waxed as aforesaid, and had been in the daily use of numerous people throughout all that time, no previous injury had ever occurred from the use of the floors of the building.

The trial judge directed a verdict for the defendant; and, upon this appeal, a wealth of cases has been cited in the briefs. Appellant relies upon a line of cases of which Hohlt Co. v. Routt (Tex. Civ. App.), 48 S.W.2d 386, may be mentioned as typical; and appellee cites Bonawitt v. St. Vincent's Hospital, 43 Ohio App 347, 182 N.E. 661, and those of a similar import. It is not to be denied that there is some inharmony among the numerous cases dealing with the subject, but all are in substantial accord upon the rule that the owner...