Gulf Hills Dude Ranch, Inc. v. Brinson, 44099

• Decision Date: 14 November 1966
• Docket Number: No. 44099,44099
• Citation: 191 So.2d 856
• Parties: GULF HILLS DUDE RANCH, INC. v. Eugene A. BRINSON.
• Court: Mississippi Supreme Court

Page 856

191 So.2d 856

GULF HILLS DUDE RANCH, INC. v. Eugene A. BRINSON.

No. 44099.

Supreme Court of Mississippi.

Nov. 14, 1966.

Rae Bryant, Thomas L. Stennis, II, Gulfport, for appellant.

Walter L. Nixon, Jr., Biloxi, Cumbest, Cumbest, O'Barr & Shaddock, Pascagoula, for appellee.

BRADY, Justice.

This is an appeal by the Gulf Hills Dude Ranch, Inc., defendant below, from a judgment of the Circuit Court of Jackson County, Mississippi, in favor of appellee, in the amount of $32,500. The facts necessary for the disposition of this case are as follows:

On December 22, 1962, the United Insurance Company of America, hereinafter called United, the employer of appellee, elected to have its Christmas party at the Gulf Hills Dude Ranch, Inc., hereinafter called Gulf Hills, in Ocean Springs, Jackson County, Mississippi. The appellee was one of the representatives chosen to make the necessary contacts with the officials of Gulf Hills for a place in which to have the party.

The appellee arrived at Gulf Hills on the night in question at approximately 7:15 p.m., and dinner was served at 8:45. Appellee drank three highballs during the course of the evening prior to the time he sustained the hereinafter mentioned injuries.

Mr. Horace W. Wheat, Assistant Manager for United, and Mr. Wheat's wife, together with the appellee, walked to one of the windows of the Fiesta Room to view the pool below. The appellee and Mr. Wheat were returning to their table when 'all at once Mr. Brinson's foot shot out from under him, and to the floor he went.' The record discloses that Mr. Brinson's foot slipped, causing him to fall on his right leg which was twisted under him.

Appellee experienced great pain. He was taken to the New Biloxi Hospital where an examination and x-rays disclosed that his leg was badly swollen between the knee and ankle. A complete fracture, classified as a spiral type, was found of the tibia, and there also was a free lying fragment of bone in the middle which was designated as a butterfly fragment. The examination also revealed a fracture of the fibula or the secondary bone of the lower right leg which had been broken in its upper extent near the proximal head. The appellee was confined in the hospital for a period of eighteen days.

The record shows that the Fiesta Room in which the fall occurred had a red tile floor. Appellee testified that Mr. Richardson, the catering manager, advised him that the wax had been removed from that portion of the floor which was to be used for dancing. Appellee nevertheless stated that the floor upon which he slipped and fell was extremely slick and appeared to be highly waxed.

Appellant contends that the circuit court erred in its refusal to set aside the verdict and the judgment entered thereon and to enter judgment in favor of appellant, and in its refusal to grant appellant a new trial. We will discuss those errors assigned which merit consideration, the first of which is that the lower court erred in not granting a directed verdict for the appellant and in refusing to grant appellant's request for a peremptory instruction.

The basis of appellant's first assignment of error is that the appellee knew the floor to be slick and dangerous and yet, knowing this fact and having imbibed alcoholic beverages, appellee put himself in a position where he was not physically or mentally capable of safely taking care of himself. Appellant contends that the appellee therefore assumed the risks of any injury which might befall him. The fallacy in this argument is that there is no proof in the record upon which it can be safely concluded that the appellee was under the influence of intoxicating liquor. Several witnesses for the appellee testified that he was not under the influence of intoxicating liquor. The sole witness who testified with reference to appellee's inability to walk and carry himself in a sober manner was the Negro waiter, Bennie Blakeney, who made conflicting statements after being interrogated at some length.

The record fails to establish that appellee, prior to his fall, appreciated the danger of the slippery condition of the floor to a degree that it can be fairly said that for him to walk upon the floor in its condition constituted an assumption of the risks incident thereto. Nor is there merit in appellant's contention that the proof failed to show that it knew, or by the exercise of reasonable care should have known, of the slippery condition of the floor, since the appellant's own agents or employees were responsible for such condition. This is not a case where there was debris, water or other foreign substance on the floor of which the appellant had knowledge. Appellant had certain knowledge, or by the exercise of reasonable care should have had certain knowledge, of the condition of the floor prior to the time the guests arrived. Subsequent to their arrival, appellant had reasonable time in which to ascertain that portions of the floor were in a highly slippery and unsafe condition. In this connection appellant finally urges that the verdict of the jury is against the overwhelming weight of the testimony and contrary to the law and evidence. With this contention we cannot agree.

As to the condition of the floor in appellant's Fiesta Room, we find this pertinent testimony. Mrs. Shirley Russell, a housewife and guest at the party, stated that when she walked into the Fiesta Room with her husband at approximately 8:30 on the night in question, her foot went out from under her and she almost fell. She testified that the floor was shiny and appeared to be highly waxed. Mrs. Russell's testimony was verified by her husband, Gerod Algene Russell. Mrs. Dorothy Scarborough, another guest at the party, also testified concerning the slippery condition of the floor.

Mr. Horatio W. Wheat, Assistant Manager for United, testified that he talked to appellee a number of times at the party, and that appellee walked normally, talked intelligently and in no way indicated that he was under the influence of alcohol. Mr. Wheat testified that while he and appellee were returning from looking at the swimming pool, one of appellee's feet shot out from under him and he fell to the floor. Wheat stated that when he stooped over and tried to help appellee to his feet, he noticed that the floor was very slippery because he almost fell himself.

Mr. Grover E. Harrison, District Manager for United, testified that he had seen appellee during the night and talked with him and that nothing in appellee's actions and speech indicated that he was under the influence of alcohol. Mr. Harrison testified that when he bent over to assist appellee in getting up, he slipped himself because of the slippery condition of the floor. Mr. Harrison stated that at the time of the injury appellee's salary and earnings were $200 or better per week, and that in addition to losing his earnings and wages, he also suffered a loss in the pension fund of the company; that the company contributed ten percent of the gross earnings of the employee to this pension fund and that appellee lost this ten percent during the time he was off from work or when he was making less because of his injuries. The loss in the pension fund amounted to $1,131.

Mrs. Brinson, appellee's wife, testified as to the intense pain and suffering which her husband had experienced as a result of the fall.

Mr. Richardson, the Assistant Manager of Dude Ranch, testified that it was his duty to see that the floors were in a reasonably safe condition for his customers' use. He admitted that other people slipped on the night in question and that one fell in the same area in which appellee fell. He denied, however, that Mr. Harrison had complained to him about the slippery condition of the floor. He testified that he did not know whether the wax had been removed from the dance area on the day in question. He stated that nothing was used to clean the floor at any time except hot soapy water and that no preservatives were used.

The deposition of Eugene Richardson, appellant's catering manager, discloses that he was responsible for the wax on the floor of the Fiesta Room prior to December 22, but not on that date; that it was his duty to see that the waxing was done in a manner that would be safe for the use of business customers, and that if it were not done in such manner, it would constitute a violation of his duties. This witness would not testify as to whether others guests had slipped on the floor on the night in question, since he was not present. Richardson by deposition stated that he did not know the date on which the last wax was applied to the floor, but that no wax was applied on December 22.

Three witnesses testified for appellant that the floor was not slippery. Testimony for appellant further showed that waiters had walked on the floor during the course of the evening in serving food and drinks and had experienced no difficulty in walking. When considered with the contraventions in the testimony offered by appellant, the testimony of appellee clearly made an issue of fact for determination by the jury.

From the foregoing it is apparent that the lower court did not err in refusing to grant a directed verdict for the appellant or in refusing appellant's request for a peremptory instruction. In determining whether or not a directed verdict is in order we have repeatedly held that the evidence must be treated as proving every fact favorable to plaintiff's case, whether such facts are established directly or by reasonable inference. Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963); Ladner v. Artigues, 234 Miss. 292, 106 So.2d 139 (1958); Grice v. Central Elec. Power Ass'n, 230 Miss. 437, 92 So.2d 837, 96 So.2d 909 (1957).

The testimony of appellee's witnesses clearly indicates, and the jury was authorized to find, that the floor of appellant's Fiesta Room was in a highly slippery condition and that because of this slippery condition, ...