Gargaro v. Kroger Grocery & Baking Co.

• Decision Date: 18 February 1938
• Citation: 118 S.W.2d 561,22 Tenn.App. 70
• Parties: GARGARO v. KROGER GROCERY & BAKING CO.
• Court: Tennessee Court of Appeals

118 S.W.2d 561

22 Tenn.App. 70

GARGARO v. KROGER GROCERY & BAKING CO.

Court of Appeals of Tennessee, Western Section.

February 18, 1938

Certiorari Denied by Supreme Court May 12, 1938.

Appeal in Error from Circuit Court, Shelby County; Harry Adams Judge.

Action by Julius Gargaro, executor of the will of Lucretia Le Riemondie, against the Kroger Grocery & Baking Company to recover for personal injuries sustained by Lucretia Le Riemondie when she fell while shopping in the defendant's store. From a judgment in favor of the defendant, the plaintiff appeals in error.

Affirmed.

Scott Fitzhugh and William O. Gordon, both of Memphis, for plaintiff in error.

Frazer & Clifton, of Memphis, for defendant in error.

MOSS Special Judge.

Plaintiff in error, Julius Gargaro, executor of the will of Lucretia Le Riemondie, sued defendant in error, Kroger Grocery & Baking Company, in the Circuit Court of Shelby County to recover damages for personal injuries sustained by his testate when she fell while shopping in the store of defendant in error and from which injuries she died. The nomenclature of the trial court will be followed. On the trial the defendant moved for a directed verdict at the close of all the evidence, which motion was overruled and there was a jury verdict and judgment thereon for the plaintiff. On motion for a new trial, the learned trial Judge sustained the ground thereof challenging his failure to grant the motion for a directed verdict, then granted the motion and dismissed the suit. Plaintiff made his motion for a new trial, which was overruled, and he has prayed and perfected his appeal in error to this Court.

The facts, concerning which there is no substantial dispute, are as follows:

The defendant, Kroger Grocery & Baking Company, operated a retail store on what is generally known as the self-service plan. A customer on entering the store would secure a market basket with a handle, in which to put the merchandise thereafter selected, the baskets used for that purpose being placed in a convenient bin or receptacle near the front of the store. The store had several shopping aisles between counters or shelves containing groceries, fruits, cakes, and other edible items, all attractively arranged; and through these aisles the customers passed with their baskets, selecting their own merchandise without assistance or interference from employees of the store, placing the merchandise selected in the baskets, and returning with the baskets to a checking counter near the front of the store, where their merchandise was checked, placed in sacks and paid for. There was a meat counter in the rear of this particular store, and a cake counter near the front of the store and close to the aisle used by customers in passing the checking counter. The aisle in which plaintiff's testate fell was about five feet wide.

On Saturday, December 12, 1936, Mrs. Sarah Tanner was a customer in the store, entering about five o'clock P. M., when the store was crowded. Mrs. Tanner secured one of the baskets, selected several items of merchandise, and after passing through several of the aisles her basket became heavy and she placed it on the floor against the cake counter, in accordance with her custom. She remembered that she wanted to buy some meat and returned to the meat counter in the rear of the store, leaving her basket on the floor by the cake counter. She remained at the meat counter, either talking to acquaintances or waiting for her turn to be served, from twenty to thirty minutes, before she heard that some one had fallen in the front of the store and returned to find that plaintiff's testate had fallen over her basket. When asked about the accident, Miss Le Riemondie said that she had come to the cake counter, was reaching up to get a package of cakes, then wanted to go back to the vegetable counter just ahead, some six or seven feet beyond the checking counter, and asked a lady to let her by or pass, and when the lady stepped aside, she either moved or pushed a basket in her way and she fell over it.

It is undisputed that the baskets used by customers in the store belonged to the store and were necessary parts of the equipment of a self-service store; that the merchandise in the store was the property of the store until paid for by the customer at the checking counter; that it was the custom of patrons of the store to leave their baskets in the aisles or passageways of the store and was their privilege to do so whenever they pleased; and that no counters, tables or supports of any kind were provided by the defendant on which such baskets could be placed, and no warning or notice forbidding the practice of putting baskets on the floor was ever given by the defendant. Deceased had been a regular customer of the store for four years, Mrs. Tanner and other witnesses who testified were also regular customers, and all of them had at times left baskets on the floor and were familiar with the practice.

The motion for a directed verdict in favor of the defendant was based on the following grounds:

1. There was no proof of negligence on the part of the defendant.

2. There was no proof that the defendant was guilty of negligence proximately causing the accident and resulting in the injury to and death of plaintiff's testate.

3. Contributory negligence of plaintiff's testate.

4. The injuries sustained were not shown to have been a natural and proximate cause of her death.

5. The proof affirmatively shows that an independent, intervening agency, over which the defendant had no control, proximately caused and occasioned the accident and injuries.

6. That plaintiff's testate was guilty of contributory negligence "and likewise assumed any risk incident to shopping in the store of defendant in which she sustained the accident sued on."

In granting the motion for a new trial and directing the verdict for the defendant, the trial judge stated that he did so for two reasons, (1) that the maxim "volentinon fit injuria" or assumption of risk applied, and (2) that there was no proof of actionable negligence on the part of the defendant.

There are nine assignments of error, and all of them complain of the action of the trial judge in granting the defendant's motion for a directed verdict at the close of all the evidence and in directing the jury to return a verdict in favor of the defendant. We concur in the views of the learned Circuit Judge, for the reasons hereinafter set out.

It is not suggested that any positive act of negligence was committed by the defendant or any of its employees or servants, but it is earnestly insisted that the custom or practice of permitting defendant's customers to place their baskets upon the floor was in itself an act of negligence, and that in this particular case permitting the basket of Mrs. Tanner to remain on the floor from twenty to thirty minutes constituted negligence, or that at least the jury should be allowed to say whether or not under these circumstances the defendant was negligent or plaintiff's testate contributorily negligent. It is argued that plaintiff's testate's injuries were proximately caused by the concurrent negligent acts of the defendant in permitting the basket to remain on the floor and of another of its customers in kicking the basket in front of plaintiff's testate and that defendant's negligence was the proximate and efficient cause.

On the other hand it is insisted by defendant that the practice of placing baskets upon the floor in this and in other similar stores is a reasonable one and that it would be impossible to prohibit it; that it was a practice with which the deceased was thoroughly familiar and that she assumed any risk resulting from this practice or custom when she entered the store, and that her own contributory negligence proximately caused the accident resulting in her injuries and death. It is also insisted that when the basket was kicked by another customer of the store, this was an act of an independent, intervening agency and not the act of an agent for whom the defendant is responsible.

The proprietor, owner, or management of a retail store such as that operated by the defendant in this case is under an obligation to exercise ordinary care and diligence to maintain the premises in a reasonably safe condition for the patrons or customers of the store,...