First Federal Sav. & Loan Ass'n of Miami v. Wylie

• Citation: 46 So.2d 396
• Parties: FIRST FEDERAL SAVINGS & LOAN ASS'N OF MIAMI v. WYLIE et al.
• Decision Date: 16 May 1950
• Court: United States State Supreme Court of Florida

Page 396

46 So.2d 396

FIRST FEDERAL SAVINGS & LOAN ASS'N OF MIAMI v. WYLIE et al.

Supreme Court of Florida, Division B.

May 16, 1950.

Rehearing Denied June 10, 1950.

Blackwell, Walker & Gray, Miami, for appellant.

Nichols, Gaither & Green, and Brown & Dean, Miami, for appellees.

SEBRING, Justice.

Mrs. Mary Wylie was injured as the result of falling on a waxed floor in the public hallway or corridor of an office building owned and occupied by First Federal Savings and Loan Association of Miami. She and her husband sued the owner of the building and were awarded damages. The owner has appealed from the judgment.

The single issue presented at the trial was whether the owner of the building had 'negligently and carelessly maintained the floor of the hallway of the second floor of said building by permitting said floor to become and to remain in a condition that was not reasonably safe to accommodate the plaintiff,' which said condition 'was known to the defendant, or by the exercise of reasonable care and diligence should have been known to the defendant but * * * was not known to the plaintiff'; and if it had been guilty of such negligent conduct, whether the plaintiff was guilty of contributory negligence in 'failing to observe the condition of the said hallway', and whether 'by using the floor of said hallway', the condition of which 'was plainly observable' by the use of ordinary care, the plaintiff 'assumed the risk of her own injury.'

The first contention made by the appellant on this appeal is that the trial court committed reversible error in refusing to sustain a demurrer to the count of the declaration presenting this issue and in refusing to grant a motion for a compulsory amendment to the count.

While the count upon which the parties went to trial was not as specific in its particulars as might have been, we are unable to say that the trial court was in error in refusing to sustain the demurrer. The alleged negligent act which constituted the basis for the suit was one of commission, not one of omission; the charge being that the defendant 'negligently and carelessly maintained the floor' whereby the same became unsafe for the accommodation of pedestrian traffic. Compare Kasanof v. Embry-Riddle Co., 157 Fla. 677, 26 So.2d 889. It was not necessary under the theory of the pleading for the plaintiff to have alleged actual knowledge of the condition of the floor on the part of the defendant, for the owner of public premises who expressly or impliedly invites persons to come upon the premises for lawful business purposes is charged with the duty of using ordinary and reasonable care to maintain the premises in a reasonably safe condition for their use, and will be held liable for derelictions in this respect of which he knew or by the exercise of ordinary and reasonable care should have known in time to have remedied the situation, or to have given warning of danger. Florida Coastal Theatres v. Belflower, 159 Fla. 741, 32 So.2d 738.

As to the refusal of the trial court to grant the motion for compulsory amendment, it is the rule that a motion for compulsory amendment of a pleading should not be granted unless the pleading is so informal or defective that it will tend to prejudice, embarrass or delay the adverse party in the fair trial of the action. See Florida Common Law Practice, Crandall Sec. 62. From an inspection of the record, it is impossible to say that the pleading was wholly defective, that the defendant was prejudiced, embarrassed or delayed in the trial of the cause, or that it ever suffered any inconvenience or was kept in doubt as to the nature of the charge for which it was finally required to answer, by reason of the manner in which the plaintiff framed her pleadings.

A second contention made by the appellant is that the plaintiff below was guilty of contributory negligence in 'failing to observe the condition of the said hallway' in which she sustained her injury and hence should be barred from recovery. The burden of proving contributory negligence in every case is upon the defendant and the credibility and weight to be attached to the evidence offered is a question for the jury. We fail to find any evidence presented by the defendant which, when weighed against the evidence adduced by the plaintiff, would have required a finding in favor of the defendant on the issue of contributory negligence. As a matter of law, the plaintiff had the right to expect that the corridor to which she went by implied invitation to transact business would be in a reasonably safe condition for her use, and unless there had been something in the apparent condition of the floor to have placed her on notice to the contrary (which there was not) she would not have been guilty of contributory negligence merely by reason of the fact that she failed 'to observe the condition of said hallway'--for, as established by the reported cases, 'It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any.' J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45, 47, Ann. Cas.1913C, 564; Crosby v. Donaldson, 95 Fla. 365, 116 So. 231; Standard Oil Co. v. Burleson, 5 Cir., 117 F.2d 412.

With respect to the evidence adduced at the trial under the pleadings, the record shows without dispute that the second floor corridor of the building in which Mrs. Wylie sustained her injury ran in a northerly and southerly direction and could be reached either by means of an automatic elevator located at the south end of the building and opening onto the corridor in a westerly direction or by a stairway immediately east of the elevator, which opened onto the corridor in a northerly direction. The floor of the corridor was composed of masonite tiling, a pressed-wood product which had been installed in the building approximately ten years prior to the date of the accident. A strip of rubber matting extended the length of the corridor but covered only the center portions of the floor, where greatest traffic was to be expected. Intersecting this center runner was a strip of rubber matting extending at right angles in an easterly direction alongside the door from the stairway landing, which ended at the doorway of an office occupied by one Dr. Walker immediately east of the stairway opening. In order to make use of the rubber strip running the length of the hallway it was necessary for anyone coming from the stairway to step onto the rubber matting leading to Dr. Walker's office, to walk to the left a step or two until the intersecting strip extending the length of the hall ws reached, and then to proceed along the center runner down the hallway to the northward.

On the day of her fall Mrs. Wylie came to the building of the defendant for the purpose of transacting business at an office in the north end of the second floor corridor. Choosing to use the stairway rather than the elevator, she climbed to the second floor, entered onto the hallway, walked down the center strip of rubber matting to the office at the north end and transacted her business. After completing her errand she retraced her steps to a point just short of the intersection of the hallway runner with the rubber matting extending into Dr. Walker's office. At this point she stepped off of the center runner to 'cut across' the corridor diagonally in the direction of the stairway opening. As she made her first step from the rubber strip onto the waxed surface of the masonite tiling she slipped and fell and thereby sustained the injuries which were the basis for her suit.

As to other questions of fact bearing upon the issues under the pleadings, the evidence adduced by the parties was in conflict. There was evidence, however, from which the jury might have found that at the time of the accident Mrs. Wylie was wearing...