F.W. Woolworth Co., Inc. v. Erickson

• Citation: 221 Ala. 5,127 So. 534
• Decision Date: 27 March 1930
• Docket Number: 6 Div. 362.
• Parties: F. W. WOOLWORTH CO., INC., v. ERICKSON.
• Court: Supreme Court of Alabama

127 So. 534

221 Ala. 5

F. W. WOOLWORTH CO., INC., v. ERICKSON.

6 Div. 362.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by Sallie Erickson against the F. W. Woolworth Company Incorporated, and another. From a judgment for plaintiff named defendant appeals. Affirmed conditionally.

T. A McFarland, W. Douglas Arant, Kingman C. Shelburne, and Bradley, Baldwin, All & White, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellee.

GARDNER J.

Appellee sued appellant and one Sprague in a tort action for damages sustained by the plaintiff when her foot slipped and she fell to the floor in the store of appellant in the city of Birmingham. There was a verdict and judgment against the Woolworth Company only, from which it prosecutes this appeal.

As to the pleading, plaintiff rested her case upon count A, to which demurrer was interposed and overruled.

Defendant insists this count does not sufficiently disclose the relationship existing between defendant and plaintiff out of which a duty to her arose. The argument has been duly considered, but it rests upon a construction of the word "maintained" as found in the complaint with which we are not in accord. Among other definitions of the word are "to carry on, to keep possession of," and the word "keep" is defined as "to conduct, or carry on, to maintain as an established institution or the like; to manage." The word "operate" has, among other definitions, "to manage; to conduct." See Funk-Wagnalls New Standard Dictionary, pp. 1495, 1344, 1728.

It is a well-recognized rule that common or popular words are to be construed in their popular sense, unless it plainly appears they were used in a different sense. Mobile Dry-Docks Co. v. City of Mobile, 146 Ala. 198, 40 So. 205, 3 L. R. A. (N. S.) 822, 9 Ann. Cas. 1229; Alabama Great So. Rwy. Co. v. Gilbert, 6 Ala. App. 372, 60 So. 542. We therefore entertain the view that the common or popular meaning of the averments of count A is that the defendants kept, conducted, or operated a store. So construed, it shows plaintiff as a customer out of which relationship arose the duty of defendants "to use proper care and diligence to keep the premises, and the passage ways thereto and therein, reasonable safe," for her use. O'Brien v. Tatum, 84 Ala. 186, 4 So. 158.

Though the averment as to a breach of this duty is in general language and may be little short of a mere conclusion, yet it sufficiently meets the requirements of our decisions. Shelby Iron Co. v. Morrow, 209 Ala. 116, 95 So. 370; Mobile Light & R. R. Co. v. Therrell, 205 Ala. 553, 88 So. 677.

Nor do we construe the averments of the complaint as requiring of defendants a higher degree of duty than outlined in the quoted extract from O'Brien v. Tatum, supra. There was no error in overruling the demurrer to count A.

Appellant insists it was entitled to the affirmative charge.

One theory for this insistence rests upon a failure of proof or a fatal variance. The proof showed that the store was that of appellant, and defendant Sprague was in its employ as manager. Counsel for appellant insist that the complaint shows a joint operation of, or a joint proprietorship in, the store, and therefore a joint duty and liability, and that as the proof discloses an operation of the store by defendant Woolworth Company only, there could be no liability against either defendant. Conceding (without deciding) the correctness of this construction of the complaint, the result insisted upon does not follow.

"It is a well-settled rule of law that in actions of tort against two or more defendants jointly, where the proof fails as to any one, a verdict may be rendered against the other or others as to whom the proof is sufficient without thereby in law constituting a variance." Southern Rwy. Co. v. Arnold, 162 Ala. 570, 50 So. 293, 295. "In actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery against any or either proved guilty." Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 735, 11 L. R. A. (N. S.) 670, 14 Ann. Cas. 1139. Section 5720, Code 1923, authorizes a recovery against one or more defendants jointly sued. Rich v. Brewer, 205 Ala. 343, 87 So. 323.

As to suits on joint contract a different rule prevails ( Haines v. Cunha, 217 Ala. 73, 114 So. 679), and in actions of tort there is an exception to the general rule where the action is for a negligent performance of, or a negligent failure to perform, a duty arising out of a contract. In such case the averment of the contract from which the alleged duty springs is made a material allegation which must be proven, as charged, or else a fatal variance results. Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Coal City Mining Corporation v. Davis, 17 Ala. App. 22, 81 So. 358.

But the instant case comes within the general rule and not the exception thereto. The affirmative charge requested upon a contrary theory was properly refused, as well also several special charges resting upon a like theory, and as to which we deem separate treatment unnecessary.

Nor are we persuaded the affirmative charge was due defendant upon the merits of the case. We concede the correctness of appellant's insistence that the mere fact plaintiff was injured while in the store raises no presumption of negligence, and it may also be conceded that the material used for oiling the floor, that is, the oil and feldspar, were proper and in general use. The authorities cited support the theory of nonliability when no more appears from the proof. Abbott v. Richmond County Country Club, 211 A.D. 231, 207 N.Y.S. 183; Spickeragle v. C. S. Woolworth Co., 236 Pa. 496, 84 A.

909, Ann. Cas. 1914A, 132; Diver v. Singer Co., 205 Pa. 170, 54 A. 718; De Velin v. Swanson (R. I.) 72 A. 388; Huey v. Gahlenbeck, 121 Pa. 238, 15 A. 520, 6 Am. St. Rep. 790; Garland v. Furst Store, 93 N. J. Law, 127, 107 A. 38, 5 A. L. R. 275. But of course upon the question of negligence, the result depends upon the facts of each particular case, and these authorities are readily distinguishable in this respect from the instant case.

Plaintiff's proof tended to show that as she approached, walking in the usual and normal manner, the end of counter No. 2, where was displayed the merchandise she wished to purchase, her foot slipped and she fell face downwards. After gettig off the floor, her face, hands, and knees were dirty with a dark colored substance as grease mixed with dirt, or as another witness describes it, as oil and dust combined; the floor showed marks where she had slipped, "skid mark." Plaintiff's witnesses further testified that this oil and dust mixture was heaviest next to the counter, dark colored there and lighter colored as you approached the...