Great Atlantic & Pacific Tea Co. v. Davis

• Decision Date: 04 January 1937
• Docket Number: 32449
• Citation: 171 So. 550,177 Miss. 562
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. DAVIS
• Court: Mississippi Supreme Court

171 So. 550

177 Miss. 562

GREAT ATLANTIC & PACIFIC TEA CO. v. DAVIS

No. 32449

Supreme Court of Mississippi

January 4, 1937

Division B

Suggestion Of Error Overruled, February 1, 1937.

APPEAL from the circuit court of Marion county HON. HARVEY MCGEHEE Judge.

Action by Mrs. Jeff Davis against the Great Atlantic & Pacific Tea Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Rawls & Hathorn, of Columbia, and Heidelberg & Roberts, of Hattiesburg, for appellant.

The trial court was in error in permitting the jury to view and inspect the place where appellee alleged that she received her injuries.

No order was entered and until an order had been entered the court and jury had no right to proceed to the premises where appellee claims she was injured, and this move on the part of the court was contrary to law and not supported by the code section.

There was no provision in the common law for the viewing of premises in the trial of a case, and except for section 2066 of the Mississippi Code of 1930 there would be no authority for viewing the premises under any circumstances. In other words, the statute is in derogation of the common law and must therefore be strictly followed.

Jones v. State, 141 Miss. 894, 107 So. 8; National Box Co. v. Bradley, 157 So. 91, 171 Miss. 15.

The court was in error in overruling motion of the defendant at the conclusion of plaintiff's testimony, to exclude the testimony and direct a verdict in favor of the defendant.

In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or occupant, or have existed for such time that it was the duty of the owner or occupant to know it.

45 C. J. 837, pars. 245, 427; 20 R. C. L., pages 56 and 57; 2 Restatement of Law on Torts, pages 938 and 939, par. 343; 33 A.L.R. page 198.

In a case of this kind the mercantile establishment is not required to do more than exercise reasonable care to furnish to the invitee a reasonably safe place. The testimony offered by the plaintiff, which was challenged by the motion for a directed verdict, did not meet the burden cast upon her to make out a case as against appellant.

Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9.

The trial court was in error in refusing to grant a peremptory instruction to the jury to find for the appellant.

All that the law required of appellant herein was to exercise reasonable care to prevent injury to its business visitors.

Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982, 33 A.L.R. 176; Burnley v. Mullins, 38 So. 635; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288.

The law does not require floors in a store building to be so constructed as to secure absolute immunity from danger in using such a floor, nor is it bound to employ the utmost care and exertion to that end. Even if we admit for the sake of argument that there could have been a splinter on the floor in question on the Saturday prior to the time that Mrs. Davis fell and was injured on the following Tuesday, still, if the splinter was as small as the little finger on a man's hand, as testified by the two witnesses mentioned and only five or six inches in length, under the law this would not constitute such an obstruction on the floor as to make appellant herein liable. The same duty as the law imposes upon a storekeeper is likewise the measure of duty on the part of a city with reference to its highways, and that duty in so far as a municipality is concerned is to exercise ordinary care in keeping its streets in a reasonably safe condition for use by persons exercising ordinary care and prudence in passing over them.

Vicksburg v. Hennessy, 54 Miss. 391; Nesbitt v. Greenville, 69 Miss. 22; Butler v. Oxford, 69 Miss. 618; Walker v. Vicksburg, 71 Miss. 899; City of Meridian v. Crook, 69 So. 182, 109 Miss. 700; City of Indianapolis v. Cook, 99 Ind. 10.

The trial court was in error in granting conflicting instructions.

The trial court was in error in overruling the motion of the appellant to set aside the verdict and to grant unto it a new trial.

J. C. Penney Co. v. Evans, 160 So. 779.

We are confident that this court will conclude that the testimony on the part of appellee is contrary to the overwhelming weight of the evidence, and that if we are mistaken in every other proposition presented, we will be granted an order reversing this case and remanding same for a new trial.

F. W. Woolworth Co. v. Patrick, 167 So. 774.

T. B. Davis and Hall & Hall, all of Columbia, for appellee.

Counsel for appellant say that the right to have a jury view the premises was unauthorized by common law and that it rests solely upon statute. The author of Ruling Case Law does not agree with that statement, but, in any event, we have a statute which authorizes a view of the premises. Section 2066, Code of 1930. And, the granting or refusing of a view by the jury, according to all the authorities, rests in the discretion of the trial judge.

26 R. C. L., pages 1016-1017; 1 Thompson on Trials (2 Ed.), secs. 882-883.

As we understand the rule, the overruling of a motion for a directed verdict will not be considered by the Supreme Court in this state where the appellant there afterwards proceeds to offer evidence in the case, but the matter will have to be presented by the defendant in a request for a peremptory instruction at the close of the evidence.

Nebhan v. Mansour, 139 So. 166, 162 Miss. 418; A. & V. Ry. v. Kelly, 88 So. 707, 126 Miss. 276; Hairston v. Montgomery, 59 So. 793, 102 Miss. 364.

The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils.

20 R. C. L. 55; 2 A. L. I. Restatement, Torts, pages 939, 940, 942-943.

A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons.

2 A. L. I. Restatement, Torts, page 944.

It is the duty of the proprietor of a store to which the public are impliedly or expressly invited to use reasonable care and diligence to keep the premises therein reasonably safe for persons visiting the store upon this invitation, express or implied.

Kress v. Markline, 77 So. 858, 117 Miss. 37; Western Union Tel. Co. v. Blakely, 140 So. 336, 162 Miss. 859; Allen v. Y. & M. V. R. R., 71 So. 386, 111 Miss. 267; N. O. & N. E. R. R. Co. v. Brooks, 165 So. 804; Theodore v. J. G. McCrory Co., 137 So. 352; Russell v. Stewart Dry Goods Co., 22 Ky. L. Rep. 121, 56 S.W. 707; Huber v. American Drug Stores, 140 So. 120; Grigsby v. Morgan & Lindsey, 148 So. 506; F. W. Woolworth Co. v. Erickson, 127 So. 534.

We respectfully submit that there was abundant evidence to sustain the verdict of the jury, and that consequently the judgment of the lower court should be affirmed.

OPINION

Griffith, J.

Appellee instituted an action against appellant for personal injuries alleged to have resulted from a defective floor in the store of appellant, and having recovered judgment in the trial court, this appeal has followed.

There are eight assignments of error, the first being that the court erred in sustaining the motion of appellee for a view of the premises by the jury, and the eighth is that the verdict is against the overwhelming weight of the evidence. There is an assignment, No. 2, that the court erred in not directing a verdict in favor of the defendant, which latter assignment is not well taken for the reason that there is some substantial testimony which would sustain a verdict for appellee. See the rule on this subject, Justice v State, 170 Miss. 96, 98, 154 So. 265. There is substantial testimony, in support of the verdict, delivered by sworn witnesses, leaving aside the view of the premises by the jury, and in such case, as was held in Kress & Co. v. Sharp, 156 Miss. 693, 702, 126 So. 650, 68 A.L.R. 167, the view by the jury when taken together with the substantial testimony delivered by sworn witnesses will, as a general rule, preclude a review of the verdict as being contrary to the overwhelming weight of the evidence. And since the allowance of a view by the jury so nearly deprives both the trial judge, and this court on appeal, of the power, from a practical standpoint, of reviewing the case upon an assignment that the verdict is contrary to the overwhelming weight of the evidence, there is again brought before us for consideration: (1) The nature and extent of the power and duty last mentioned; (2) in the light thereof, the meaning or interpretation which is allowable to the statute, section 2066, Code 1930, providing for a view of the premises by a jury; (3) the proper procedure for obtaining a view of the premises; and...