Grzboski v. Bernheimer Leader Stores

• Decision Date: 07 December 1928
• Docket Number: No. 30.,30.
• Citation: 143 A. 706
• Parties: GRZBOSKI v. BERNHEIMER LEADER STORES.
• Court: Maryland Court of Appeals

143 A. 706

GRZBOSKI

v. BERNHEIMER LEADER STORES.

No. 30.

Court of Appeals of Maryland.

Dec. 7, 1928.

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Action by Sally Grzboski against Bernheimer Leader Stores. From a judgment for defendant on a directed verdict, plaintiff appeals. Reversed and new trial awarded.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, and SLOAN, JJ.

Lewis W. Lake, of Baltimore (Samuel Greenfeld, of Baltimore, on the brief), for appellant.

Fendall Marbury, of Baltimore (L. Wethered Barroll and William L. Marbury, both of Baltimore, on the brief), for appellee.

BOND, C. J. This appeal is by a plaintiff in a suit for damages for personal injury, from a judgment for the defendant upon a verdict directed by the court at the close of the plaintiff's evidence in chief. The defendant kept a department store in Baltimore City, and the plaintiff alleged and testified that while passing from one department to another in making purchases she slipped on pieces of orange peel in a small pile of rubbish in the aisle, and was injured by a fall. She was the only witness produced on the fact of the fall, and her testimony was somewhat indefinite; but we think a jury might find these facts testified to: She slipped close to one side of the aisle, and when she was helped up and given a seat she noticed at the spot a small pile of dirt, paper, and the like, with pieces of orange peel about it, and the pile had the appearance of having been swept up for subsequent removal. The pile was small, for a salesgirl afterwards kicked it under the counter with her foot. It was on the orange peel that the plaintiff slipped, and the floor showed a wet spot from the slipping. She had not seen it before her fall, as she was not looking at the floor, and after her fall the pile was scattered a little, and she did not know in what part of it the orange peel had been.

There are two groups of exceptions presented, one of exceptions to the exclusion of testimony by the plaintiff of a salesgirl's supposed remark after the accident as to the pile of dirt and the cause of its being there, and the second, to the instruction of a verdict for the defendant.

The exclusion of the testimony of the supposed remark of the salesgirl we find correct, because there is nothing to relieve it of incompetency as hearsay. The remark to be reproduced was no more than a narration of past facts, the salesgirl is not a party defendant whose admission would be competent, and it was not within the scope of her agency for the defendant to talk for it, except in connection with making her sales and whatever else her duties may have included; and the remarks offered here were not so connected with her work, and would not bind the employer any more than if made by a stranger. Noel Construction Co. v....