Gilmore v. Ward

• Decision Date: 01 November 1949
• Docket Number: (No. 10117)
• Citation: 133 W.Va. 342
• Court: West Virginia Supreme Court
• Parties: Winifred Gilmore v. Montgomery Ward & Company

133 W.Va. 342

Winifred Gilmore

v.Montgomery Ward & Company

(No. 10117)

Supreme Court of Appeals of West Virginia.

Submitted September 13, 1949.

Decided November 1, 1949.

1. Evidence

"The extrajudicial declarations of an agent, not made under oath, are not admissible in evidence as admissions against the interest of the principal unless the declarations relate to an act within the authorization of the agent in which the agent was engaged at the time the declarations were made." Pt. 1, Syl., Reynolds v. Grant Co., 117 W. Va. 615.

2. Evidence

An extrajudicial declaration, spontaneously made by a person who was a witness to the occurrence to which the declaration relates, and made by declarant while under the stress of emotion or excitement, is admissible in evidence as a part of the res gestae.

3. Instructions

It is not error for a trial court to refuse to give to the jury an instruction, the substance of which is covered by another instruction.

4. Negligence

"In an action for damages for personal injuries, when the material facts are undisputed and reasonable men can draw but one conclusion from them, the question of negligence becomes one of law for the Court." Pt. 3, Syl., Cooper v. Pritchard Motor Co., 128 W. Va. 312.

Winifred Gilmore sued Montgomery Ward & Company to recover damages for personal injuries sustained by her as the result of having fallen while in defendant's store.

The Circuit Court of Cabell County rendered judgment for the plaintiff, and defendant brought error.

Judgment reversed; verdict set aside; new trial awarded.

Lovins, Judge, not participating.

Scherr, Meek & Vinson, for plaintiff in error.

John L. Whitten, J. J. N. Quinlan, for defendant in error.

Riley, Judge:

This writ of error and supersedeas was granted defendant, Montgomery Ward & Company, hereinafter referred to as the "store," to a judgment of the Circuit Court of Cabell County, rendered against defendant upon a jury verdict in the amount of $1,750.00, in an action of trespass on the case wherein the plaintiff, Winifred Gilmore, sought to recover damages for personal injuries sustained by her as the result of her having fallen while in the store. The facts giving rise to this action are as follows:

About 11:30 in the morning of October 29, 1946, plaintiff entered defendant's store, located at the corner of Third Avenue and Eighth Street, in the City of Huntington, for the purpose of making a purchase. The store, which is one of a chain of general merchandise stores operated by defendant throughout the United States, is so designed that there are counters and aisles leading from the Third Avenue entrance back through the store.

Having ascertained that the merchandise she wanted to purchase was not available, plaintiff proceeded to walk down one of the aisles leading to the Third Avenue entrance of the store. When she was approximately fifteen feet from the door, and near the corner of one of the counters on the aisle, she slipped and fell, as a result of which she allegedly suffered serious and painful injuries to her back and ankle.

The exact manner in which the accident occurred is not clear from the record, plaintiff stating that it happened so suddenly that she does not know the details thereof. Plaintiff states, however, that the floors of the store were slippery; that she noticed a "little impression" fourteen to eighteen inches long on the floor where her "heel had slid"; and that the floor appeared to have been waxed. Plaintiff further states, however, that she made no particular inspection of the floor elsewhere in the store, and could not say that there was a particular waxed or slippery spot confined to place of her accident.

Over objection of the defendant, plaintiff introduced the testimony of Rachael Jackson, who, at the time of the accident, was a clerk employed by the store, to the effect that on the day of the accident there had been "some discussion" among the employees of the store "as to the slipperiness of the floor."

Furthermore, plaintiff testified, over objection of defendant, that an unidentified clerk of the store, who had first rendered her assistance immediately following the accident, stated that the floors had been "waxed" the night before and pointed out a "place on the floor" where plaintiff had fallen.

While admitting that plaintiff fell on the floor of the store, defendant produced the testimony of one of its clerks, as well as one of its department managers, to the effect that each had seen the accident occur, but were unable to explain the cause. These witnesses further testified that they gave immediate assistance to plaintiff, who advised them that she was not hurt; and that plaintiff had then said that she did not know how the accident had occurred but that the store was not at fault. Both witnesses testified that there was nothing unusual about the floor at the place where the accident occurred, the clerk adding that many people, including the sixty employees of the store, had walked over the same spot without any untoward incident earlier in the morning.

Defendant further adduced evidence to the effect that the flooring of the store was a substance known as "Masterpave," which is an asphalt composition, impregnated with asbestos and other fibers, the purpose of which is to create friction. "Masterpave" is shown to be a flooring commonly used in stores of this country in which there is heavy pedestrian traffic.

An expert testified that such flooring has a friction coefficient of.63, while the generally accepted friction coefficient of.50 is more slippery. This expert testified that the approved method of cleaning "Masterpave" is by the use of a vegetable oil soap, known as "Micolium", which is applied after the floors have been swept with a yarn broom. The "Micolium" is then removed and a resinous substance, known as "Solegrip," is applied. The purpose of "Solegrip" is to increase the friction coefficient of the flooring, and, when applied in the manner heretofore detailed, "Masterpave" has a friction coefficient rated at.85, which is generally considered "good."

Defendant adduced the testimony of a professional floor cleaner who stated that on the night of October 28, 1946, he had cleaned and treated the floor of the store in the manner heretofore described.

At the conclusion of all of the testimony, defendant made a motion to strike the evidence of plaintiff, and to direct a verdict for defendant, which motion was overruled. Eight instructions were offered by defendant, two of which were refused, those being instruction No. 1, which was peremptory, and instruction No. 5, which reads as follows: "The Court instructs the jury that this plaintiff cannot recover unless she proves, by a preponderance of the evidence that this defendant was negligent and that such negligence was the direct and proximate cause of the injury alleged."

Although the record does not disclose that plaintiff objected to the giving of defendant's instruction No. 5, it should be noted that defendant's instruction No. 6, which was given, reads, in part, as follows: "The Court further instructs the jury that the burden is upon the plaintiff to prove by a preponderance of the evidence that the defendant was guilty of negligence, and that as a proximate result thereof she was injured. * * *"

In its petition to this Court for a writ of error, defendant assigns as error the actions of the trial court in overruling defendant's demurrer to plaintiff's declaration, and in overruling defendant's motion for a bill of particulars. However, it appears that defendant has abandoned these assignments of error in its brief filed herein, and no further consideration will be given to them.

The other assignments of error made by defendant raise the following issues to be determined herein: (1) Whether the trial court erred in admitting the testimony of Rachael Jackson, as well as the testimony of plaintiff, to the effect that certain employees of defendant had stated that the floors were waxed or slippery at the time of the accident; (2) whether the trial court erred in refusing to give defendant's instruction No. 5, to which no objection by plaintiff is noted in this record; and (3) whether the evidence is sufficient to sustain the verdict.

At the outset of a discussion of the first of these issues, it is important to point out that basically the testimony of both witnesses, to which objection was made by defendant, concerns a relating of extrajudicial declarations made by persons other than the witnesses. Rachael Jackson testified as to "some discussion" among employees of the store, while plaintiff repeated a statement made by an unidentified clerk immediately following the accident.

It is urged that the declarants of each statement reiterated by the witnesses were agents of defendant, and as such their statements constituted admissions against the interest of their principal. True, the declarants were clerks, or saleswomen, employed by defendant; but no other showing is made of the authorization, functions and duties of such clerks in fulfilling their employment by the store. On the contrary, positive and. undisputed evidence was introduced showing that the defendant employed professional floor cleaners whose duty it was to clean defendant's floors.

In Reynolds v. Grant Co., 117 W. Va. 615, 186 S. E. 603, this Court had under consideration the admissibility of an extrajudicial statement made by defendant's store manager. Therein it was held: "The extrajudicial declarations of an agent, not made under oath, are not admissible in evidence as admissions against the interest of the principal unless the declarations relate to an act within the authorization of the agent in which the agent was engaged at the time the declarations were made." See Weismantle v. Petros, 124 W. Va. 180, 188, 19 S. E. 2d 594; Reall v. Deiriggi, 127 W. Va. 662, 668, 34 S. E. 2d 253. In the absence of direct proof, this Court can and will take judicial notice...