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

• Decision Date: 14 April 1924
• Docket Number: 24056
• Citation: 135 Miss. 410,100 So. 3
• Court: Mississippi Supreme Court
• Parties: F. W. WOOLWORTH CO., INC., et al. v. VOLKING. [*]

100 So. 3

135 Miss. 410

F. W. WOOLWORTH CO., INC., et al. v. VOLKING. ^[*]

No. 24056

Supreme Court of Mississippi

April 14, 1924

Division A

Suggestion of Error Sustained and Affirmed with Remittitur May 19, 1924.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by Miss Cora Volking against the F. W. Woolworth Company Inc., and others. Judgment for plaintiff, and defendants appeal. Affirmed, with remittitur.

Reversed and remanded. Sustained and affirmed.

J. A. Leathers, for appellants.

The court erred in refusing the peremptory instruction asked by the appellants. There is a total absence of any testimony in this record that would enable the jury to say from the evidence whether plaintiff's injuries, or cold, resulted proximately from the condition the appellee, herself, testifies she was suffering with before she caught the cold, or whether they resulted from the alleged acts of the appellants' manager, Anderson, even if the jury believed that they happened, as it appears they did believe. In other words, the causal relation between the acts complained of and the alleged injury is not established by any competent testimony, and rests purely upon the naked assertion of the appellee, herself.

The burden is on the appellee to establish this causal relation by competent and sufficient testimony, and because of her failure to do so, she cannot recover in this case. Louisville & Nashville R. Company v. Jones, 98 So. 230; Yazoo City Transportation Company v. Smith, 28 So. 807; 15 L. R. A., page 741; Seutter v. Maysville, 114 Ky. 60, 69 S.W. 1074; Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U.S. 249, 26 L.Ed. 1070; Thomp. Neg, 47 et seq.; Ill. C. R. Co. v. Mizell, 100 Ky. 235, 38 S.W. 5; Henry v. St. Louis, K. C. & N. R. Co., 76 Mo. 288, 43 Am. Rep. 726; South Side Pass. R. Co. v. Trich, 117 Pa. 390, 2 Am. St. Rep. 672, 11 A. 627; Pa. R. Co. v. Hope, 80 Pa. 373, 21 Am. Rep. 100; Block v. Milwaukee Street R. Co., 89 Wis. 371, 27 L. R. A. 368; L. & N. R. R. Co. v. Webb, 99 Ky. 339, 35 S.W. 1117; N. O. & N.E. R. Co. v. McEwen, 49 La. Ann. 1184, 38 L. R. A. 134, 22 So. 675; Lewis v. Flint & P. M. R. Co., 53 Mich. 55, 52 A. R. 790; Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U.S. 475, 24 L.Ed. 259; Francis v. St. Louis Transfer Co., 5 Mo.App. 7; Hobbs v. London & S.W. R. Co., L. R. 10, Q. B. 111; McClary v. Sioux City & P. R. Co., 3 Neb. 44, 19 A. R. 631; 22 R. C. L. 22, p. 152; Sullivan v. Old Colony Street R. Co., 197 Mass. 512, 125 A. S. R. 378; McCafferty v. Pa. R. R. Co., 193 Pa. St. 339, 74 A. S. R. 690; Deschanes v. Concord & M. R. R. Co., 69 N.H. 385, 46 A. 467. See also on proximate cause Pullman Company v. Lack, 143 Ill. 242, 18 L. R. A. 215; Butcher v. R. R. Co., 37 W.Va. 180, 18 L. R. A. 519; Lutz v. R. R. Co., 16 L. R. A. 819. Exposure to Cold: No duty on the master to protect against: King v. Interstate Consolidated Street Ry. Co., 70 L. R. 924.

We, therefore, submit that the lack of evidence as to the proximate cause of her suffering--made it the duty of the trial court to have granted the peremptory instruction asked by the appellants, and its failure and refusal to do so was manifest error. It is utterly impossible to determine from the evidence in this record whether appellee's alleged injuries resulted from the condition of her nose prior to January 25th, or from the alleged acts of Anderson, as stated by her, and her alone.

In addition to the foregoing, and as announced by the authorities last above cited, it was the duty of the appellee to have taken all reasonable precautions to protect herself under the circumstances which she says existed and her failure to do so, as testified to by her, bars her recovery. As this court said in the case of Transportation Company v. Smith, 78 So. 807, supra, it can be presumed that the appellee knew more of her condition and her temperament than any one else, and that she would act as a person of ordinary common sense, even if the acts of the appellant, Anderson, complained of by her and testified to by her, happened as she said they did. 2 Labatt on "Master and Servant" 1904 edition, pages 2208 and 2209; Hayes v. Michigan C. R. Co., 111 U.S. 228, 241, 28 L.Ed. 410, 415.

L. W. Maples, for appellee.

The court did not commit any error in refusing the peremptory instruction requested by the appellants. This court held in Miss. Oil Co. v. Ellis, 72 Miss. 191, that the master owes his servants the duty to provide him with a reasonably safe place in which to work and to keep same reasonably safe. See, also, Finkbine Lumber Co. v. Cunningham, 101 Miss. 292; Keel v. Dukate, 93 Miss. 201; Cook Oak Co. v. Mormon, 176 S.W. 305; Robertson-Schaefer Co. v. Jones, 101 S.W. 165; Wickstrom v. Whitney et al., 136 N.W. 1094. The evidence in this case shows that the store building of appellant on the 25th day of January, 1923, was cold and freezing.

Appellee by the testimony offered at the hearing of this cause shows conclusively that the proximate cause of her suffering condition at present was due directly to the negligent, wilful, and wanton acts of appellant Anderson, and this is the admission of the appellant by own testimony, and also as is shown by testimony offered by, and in behalf of appellee.

"The rule is that the previous condition of the person injured cannot be invoked by the defendant for the purpose of escaping the consequences of his own negligence." Terry v. N. O. G. N. R. R. Co., a Mississippi Case in 60 So. 729.

The law concerning proximate cause is thoroughly discussed in Cumberland Telephone-Telegraph Co. v. Woodham, 54 So. 890; Yazoo & M. V. R. Co. v. Smith, 60 So. 73; Yazoo City v. Birchett, 42 So. 569; Seith v. Commonwealth Electric Co., 24 L. R. A. (N. S.) p. 978; Cleveland C. C. & St. L. R. R. Co. v. Tauer, 39 L. R. A. (N. S.), 20; 22 R. C. L. 148 and 149.

The trial court did not err in refusing the peremptory instructions asked by appellant. Cantrell v. Lush, 73 So. 885; Ala. Great Southern R. Co. v. Daniell, 66 So. 730; Dodge v. Cutrer, 58 So. 208; Jones v. Knotts, 70 So. 701; Waldrop v. A. B. Crittenden Co., 65 So. 644.

J. A. Leathers, for appellants, in reply to suggestion of error.

We are at a loss to understand how this question of reversing this cause merely on the amount of damages can even enter into this case from any angle. If the cause was properly reversed, as was done, such reversal was properly based, as shown by the opinion of the court, upon the question of liability, under the evidence, or rather lack of evidence disclosed by the record on this appeal.

It is clear from the opinion that the court reversed this case on the question of liability, holding that the appellee, on the trial below, had not introduced sufficient testimony of any probative value to establish a proper causal connection between the injuries complained of and the alleged acts of the defendant, Anderson. If this court should now hold that this view of the case is all wrong, and that the cause should be remanded on the question of damages, alone, then we submit that, under the principle of law governing this case, it should not be remanded at all, but so far as the damages are concerned should be affirmed on this appeal.

If this court can, under the evidence in this record, reverse its former holding on the question of liability, as quoted from its opinion, supra, and hold that in this case the evidence is sufficient and of proper probative value to show a causal connection, then what reason is there to reverse the case on the question of damages? The evidence on this point fails to show two things, either one of which is fatal:

1. It fails to connect the cold which the appellee says she caught with the acts of Anderson, which are the things complained of in the declaration.

2. There is a total lack of evidence of any probative value to show that the condition of her nose, which she complained of, and which was the chief alleged cause of her suffering, resulted either from the cold or from the acts of Anderson.

We submit that, under every principle of law bearing on this proposition and under the decisions of this court, this cause should not only have been reversed, as was done, but should have been dismissed.

L. W. Maples, for appellee, on suggestion of error.

The jury had a right to believe, and they believed that there was no heat in the store, and that it was cold in said store; and that Miss Volking was cold and as a result of said condition that she contracted a cold; and that the proximate cause of her contracting a cold was the wanton and negligent acts of the manager of the Woolsworth Company. The lower court properly instructed the jury as to the law covering the liability in this case.

This court has found, to which we cheerfully submit, that there is no competent evidence in the record to establish a causal connection between the cold and subsequent injuries complained of by appellee, and the court then correctly concluded, therefore, that the opinion of appellee was nothing more than a guess or speculation on her part and there can be no recovery for the injury complained of to her nose, eyes, and throat until the connection between the cold and the subsequent injuries are established by competent basic facts. The injury to her nose, eyes, and throat if connected with the cold that she contracted, will go only to the amount of damages that she is entitled to recover; but as has been hereinbefore stated, this court found that Miss Volking contracted a cold there on account of having to remain in the cold store during the day in question, and that the appellant is therefore liable for the cold contracted and the time that she lost as a result of said cold and such other injuries which can be...