Great Atlantic & Pacific Tea Co. v. Custin, No. 26981.

• Docket Nº: No. 26981.
• Citation: 214 Ind. 54, 13 N.E.2d 542
• Case Date: March 11, 1938
• Court: Supreme Court of Indiana

214 Ind. 54
13 N.E.2d 542

GREAT ATLANTIC & PACIFIC TEA CO.
v.
CUSTIN.

No. 26981.

Supreme Court of Indiana.

March 11, 1938.

Action by Minnie Custin against the Great Atlantic & Pacific Tea Company to recover damages for personal injuries sustained in defendant's store. Judgment for plaintiff, and defendant appeals.

Affirmed.

[13 N.E.2d 543]

Appeal from Superior Court, Porter County; Mack B. Rockwell, judge.
Transferred from Appellate Court under section 4-218, Burns' Ind.St.1933.

Geo. E. Hershman and Russell A. Nixon, both of Crown Point, for appellant.

Wm. Daly, Edmund J. Freund, and Roy A. Pillard, all of Valparaiso, for appellee.

TREMAIN, Judge.

This is an action by appellee against appellant to recover damages for personal injuries alleged to have resulted from the negligence of appellant. The complaint alleged that on June 1, 1934, appellant was engaged in the retail grocery business in the city of Valparaiso; that appellee was a customer; that about 5:45 o'clock in the afternoon, daylight savings time, appellee entered appellant's store for the purpose of making purchases; that the store was about 20 feet in width, with an offset 3 1/2 feet wide and 12 feet long on the left-hand side; that the entrance to the store was through a door near the center of the front of the room; that display windows were maintained on each side of the door; that shelving and counters extended back on each side; that, in the center of the room about 12 feet back from the entrance door, there was a rack upon which bananas were displayed; that the base of this rack was made of empty orange crates; that it was so constructed that the aisle between it and another rack was very narrow; that after making other purchases, the manager of appellant invited appellee to purchase some bananas, and directed her to the banana rack; that appellee followed the manager to the rack through the narrow aisle, and, in so doing, her right leg, 6 or 8 inches above the foot, came in contact with a broken, twisted, and jagged piece of metal binding, which protruded from an orange crate upon which the display rack was erected; that the jagged part of the metal protruded into the narrow aisle, which was not well lighted, and by reason of its position and the lighting condition, she failed to see it, and sustained a serious injury to her leg.

It was alleged that the appellant, its agents, and employees carelessly and negligently had permitted said condition to exist for some time previous to the date of the injury and the appellee had no knowledge of its existence; that, at the time she was injured, she called the manager's attention to the injury; that an examination of the crate was made, and the metal piece was located protruding from it about 8 inches from the floor, and in such manner that a person walking in the narrow aisle could not observe it, in the exercise of reasonable care.

The complaint alleged the nature of the injuries, the duration of time the appellee was confined to her room, the amount of surgical and medical treatment, the expenses incurred on that account, and that she was permanently injured.

To this complaint the appellant filed a motion to strike out certain allegations. The motion is predicated upon the ground that the allegations are immaterial and irrelevant; that each allegation states a conclusion of law, and is harmful to the rights of appellant. The court overruled the motion. One of the grounds for the motion is that the allegation, ‘that notwithstanding the fact that the manager of said defendant's store had previously injured himself * * *,’ is not a direct averment of fact that the manager was injured. It is alleged for the purpose only of showing notice to the appellant or its manager. Other objections are of a similar nature. Overruling the motion to strike out does not constitute reversible error.

Appellant filed a motion to make the complaint more specific. The motion

[13 N.E.2d 544]

stated that the complaint alleged that the display rack was located near the center of the store adjacent to a narrow aisle between the ‘metal display racks above mentioned.’ The objection to that allegation is that no mention had theretofore been made of any metal display racks and that the allegation should therefore be made more definite and certain. Another ground for the motion is that the complaint does not definitely state whether the metal projection was attached to the box or the display rack. The appellee was asked to make the complaint more specific by stating whether the metal on the packing case or display rack became broken and twisted before being placed in the line of travel, or whether it was broken after being placed in close proximity to the line of travel. Appellee was asked to state more specifically the ground upon which she drew her conclusion ‘that said defendant negligently and carelessly placed said box and/or display rack thereon in the immediate proximity to the narrow aisle existing between the wooden display racks which were located just South of said last mentioned box and rack. * * *’

The appellant appears to be rather technical in its demands for specific allegations as to the nature and location of the metal alleged to be protruding from the display rack. The complaint is lengthy, and probably contains more allegations than are necessary. Under the conditions presented, it seems to be fully specific to inform the appellant of all facts necessary to explain the location of the display rack and orange crates, when it is considered they were located in the appellant's store, under its control, and no one could have a better knowledge of the location, construction, and condition of the box than the agent and employee of the appellant, particularly when it was alleged that he had been injured upon the same projection, and his attention was called to the condition of the crate at the time, and an examination was then made. It is not apparent that overruling the motion to make more specific constitutes error.

Appellant assigns error upon the overruling of its demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleged notice of the defect; appellee's lack of knowledge thereof; protrusion of a piece of metal into an narrow aisle leading to the display case, where the appellee was invited by the manager; the injury sustained, and resulting proximately from the dangerous condition of the display rack negligently maintained by appellant, together with other allegations which make it...