Dillon v. Wallace

• Decision Date: 11 February 1957
• Citation: 306 P.2d 1044,148 Cal.App.2d 447
• Court: California Court of Appeals Court of Appeals
• Parties: Mabel Arletta DILLON, Plaintiff and Respondent, v. Sidney WALLACE, doing business under the firm name and style of Sid's Market, and James Kent, Defendants and Appellants. Civ. 16683.

Page 1044

306 P.2d 1044

148 Cal.App.2d 447

Mabel Arletta DILLON, Plaintiff and Respondent, v. Sidney WALLACE, doing business under the firm name and style of Sid's Market, and James Kent, Defendants and Appellants.

Civ. 16683.

District Court of Appeal, First District, Division 2, California.

Feb. 11, 1957.

Rehearing Denied March 13, 1957.

Hearing Denied April 10, 1957.

Healy & Walcom, San Francisco, F. A. Plank, San Francisco, of counsel, for appellants.

J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, for respondent.

DOOLING, Acting Presiding Justice.

Defendants appeal from a judgment for $12,500 entered following the verdict of a jury. The plaintiff was injured as a result of a fall caused by her slipping on a piece of parsley on the floor of the grocery department of a market owned and operated by appellant Wallace and of which appellant Kent was manager. (There was a conflict in the evidence as to whether Kent was manager of the entire market or only of the grocery department. The complaint alleged that Kent was the general manager of the store and this was not denied in the answer. In any event the evidence on this, as on every issue, must be construed most favorably in support of the judgment.)

The fall occurred at about 10:10 a. m. on December 26, 1952, while respondent, who was in the market to make some purchases, was walking down one of the aisles in the grocery department. Shortly thereafter another customer called the appellant Kent. When he arrived respondent was leaning against a counter above the place where she had fallen. She testified that she showed him the piece of green vegetable upon which she had slipped. He looked at her knee and said that it looked to him as if it was broken. 'He said, 'We can't take you home, we have got to take you to the hospital.' He said, 'Don't you worry about this,' he said, 'we are insured and we will pay your bills.''

Respondent was then taken to a storage room where she was seated on a chair waiting to be taken to the hospital. There was testimony of a further conversation with Kent while respondent was resting there in which he said: 'Now, this is the store's fault, don't you worry about a thing, we will pay all bills.'

The floors of the market had last been cleaned after closing hours on December 24. The market was closed on December 25. It reopened on December 26 at 8 a. m. Kent made an inspection of the floors before the market opened. He made no further inspection before the accident. Appellant Wallace testified that he had instructed his clerks to continually make inspections of the floor while working rather than have somebody do it hourly or every two hours, but no evidence was introduced that any employee had inspected the aisle where the parsley was found between Kent's inspection and the time of the accident. Kent further testified that wire mesh grocery carts were supplied for customers' use, and that customers frequently put unwrapped vegetables, including sprigs of parsley, into these carts. He was then asked the question: 'Isn't it true that to your own knowledge that on many occasions, make that a number of occasions, loose bits of vegetables, parsley, carrot tops and the like fell out through those baskets onto the floor?' He answered: 'They do fall through the baskets.'

'Q. That is right. You knew that, didn't you? A. That is right.'

In the face of this evidence it is vain for appellants to argue that there is no sufficient evidence to establish their liability. The jury could find from the evidence that no inspection of the floor in this aisle was made for a period of more than two hours. It certainly presented a fact question for the jury whether in the exercise of ordinary care appellants, with knowledge of the fact that customers were in the habit of putting loose vegetables into the mesh carts and that loose bits of vegetable might fall and had previously fallen through the meshes to the floor, should have made more frequent inspections of the floor than the evidence indicates were in fact made in this case. It is ordinarily the rule that plaintiff must prove that the defective condition existed long enough so that by the use of ordinary care it should have been discovered and remedied. Otherwise stated: 'the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.' Emphasis ours; Hatfield v. Levy Brothers, 18 Cal.2d 798, 806, 117 P.2d 841, 845. There is no evidence that appellants had actual knowledge of the presence of this foreign matter on the floor, but there is ample evidence in the knowledge of the continuing danger of loose vegetables falling through the meshes of the carts as they had been known to do in the past, to make it a jury question as to whether appellants would 'have been able by the exercise of ordinary care to discover the condition.' Where a business invitor has knowledge of a course of conduct of third persons on his premises which may endanger the safety of his invitees he is under a duty to exercise ordinary care to forestall such injury. Rest. Torts, § 348; Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 148 P.2d 405; Terrell v. Key System, 69 Cal.App.2d 682, 159 P.2d 704. In Harris v. Joffe, 28 Cal.2d 418, 425, 170 P.2d 454, 458, the court said of a recurring dangerous condition of the premises due to tenants tracking water into the hallway in wet weather: 'Although there is no evidence that Mrs. Joffe had actual knowledge of the condition at the time of the injury, her constructive knowledge may be inferred from the prior complaints, and she had the affirmative duty of using ordinary care to keep the vestibule in a safe condition.' Here the jury could reasonably find that with knowledge of the recurring danger from loose vegetable matter falling through the carts appellants had not used ordinary care for the protection of their customers from this known hazard.

The first admission of appellant Kent was admitted into evidence against his employer Wallace as well as against himself on the theory that it was a part of the res gestae. We find no error in this ruling. Since the decision of Showalter v. Western Pac. R. Co., 16 Cal.2d 460, 106 P.2d 895, it has been recognized that where an occurrence is 'startling enough to produce * * * nervous excitement and render the utterance spontaneous and unreflecting' and 'before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance', 16 Cal.2d at page 468, 106 P.2d at page 900, statements relevant to the occurrence are admissible as part of the res gestae. Here Kent found respondent in pain at the scene of her fall, he was shown the parsley upon which she slipped and he immediately told her that her knee seemed to be broken, that she could not go home but must go to a hospital, and added: 'Don't you worry about this * * * we are insured and will pay your bills.' Under the Showalter case and Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21, this declaration at the scene of the fall and under the impact of Kent's first discovery of the facts was properly held admissible against his employer.

The suggestion that it was improper in this and the evidence of the later statement of Kent to include his references to insurance are answered by the cases holding that when a reference to insurance is an integral part of an otherwise admissible declaration the whole is properly admitted. Hawke v. Burns, 140 Cal.App.2d 158, 167-168, 294 P.2d 1008 and cases cited.

The court ruled that the second statement made after respondent was taken to the storage room was not a part of the res gestae and instructed the jury that the statement made by Kent in the storeroom would be admissible against his employer Wallace, if, and only if, the jury first found that this statement was made by Kent in the scope and course of his authority. Appellant Wallace argues that there was no evidence from which the jury could reasonably find that Kent had any authority to bind Wallace by any admission of liability. The evidence in this respect shows that Kent had general charge as manager of the store's operations and in case of injury to a customer it was his duty to see that the customer got the necessary attention. There is no evidence that he had any authority to negotiate or settle any claim that such a customer might have, nor is the negotiation or settlement of such claims any part of the ordinary operation of a manager of a market. The court was in error in leaving to the jury the question of Kent's authority to bind Wallace by any statement acknowledging liability.

In Luman v. Golden Ancient Channel M. Co., 140 Cal. 700, 709, 74 P. 307, 311, the court said of...