H. E. Butt Grocery Co. v. Bruner, 5487

• Decision Date: 20 November 1975
• Docket Number: No. 5487,5487
• Parties: H. E. BUTT GROCERY COMPANY, Appellant, v. Aline BRUNER, Appellee.
• Court: Texas Court of Appeals

Page 340

530 S.W.2d 340

H. E. BUTT GROCERY COMPANY, Appellant, v. Aline BRUNER, Appellee.

No. 5487.

Court of Civil Appeals of Texas,

Waco.

Nov. 20, 1975.

Rehearing Denied Dec. 11, 1975.

Naman, Howell, Smith & Chase, Louis S. Muldrow, Waco, for appellant.

Sleeper, Williams, Johnston, Helm & Estes, Minor L. Helm, Jr., Waco, for appellee.

OPINION

JAMES, Justice.

This is a venue case. The Plaintiff slipped upon a green onion stalk and fell in the Defendant's store. She brought this suit in McLennan County, where the store is located, for her damages. The Defendant's controverted plea of privilege to be sued in Nueces County, the asserted county of its residence, was overruled. It appeals. The single question we must decide is whether the evidence is legally sufficient to support the finding implied in the judgment that the onion stalk had been on the floor of the store for such length of time that by the exercise of ordinary care the Defendant should have discovered and removed it. We hold the evidence is legally sufficient and affirm the trial court's judgment.

Plaintiff-Appellee Mrs. Bruner, a 64 year old woman, went into the Defendant store at or about 4 PM on Saturday afternoon, May 5, 1973. There were 'not too many' customers in the store at the time. She picked up a few vegetables and went through a checking counter, took 'two or three' steps from the checking counter to her right, at which time she stepped on an 'onion top' on the floor, and thereupon fell, causing the alleged personal injuries sued for. There were a number of checkout stands in a line in the front portion of the store. There was a space of about ten feet between the line of checkout stands and the front wall of the store, in which portion of the store Plaintiff slipped and fell.

Plaintiff was checked out at the second checkout stand from the left end, as you look from the front of the store to the rear. The checkout stand through which she passed was manned by two people, one being a checkout clerk and the other a 'sacker.' There were a number of the other checkout stands open and operating at the time in question, each likewise being manned by a checkout clerk and a sacking clerk.

Plaintiff's head struck the floor in the fall and she was knocked unconscious, after which she would alternately regain consciousness and then relapse into unconsciousness. When she fell, she heard one of the male employees say, 'Get her up quick.' Then two of the male employees picked her up. Then one of the boys, seeing the onion top Plaintiff had stepped on, said to the other, 'Get rid of that thing.' The onion top was 'long and juicy,' looking like it had been 'stepped on and mashed.' Then one of the female checking employees came over and asked Plaintiff, 'Do you need me to help you outside?' Plaintiff replied, 'I don't think so.'

One of the boys asked the other 'where the manager was' to which the other boy said, 'He's gone out the back door to check a truck.'

Plaintiff did not see 'anybody with a broom or anybody with a mop and bucket or anything like that' anywhere around in the process of cleaning up the floor, at or before her fall.

The issue of whether or not a given act or omission constitutes negligence is essentially a fact question. The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other. Blanks v. Southland Hotel (1950), 149 Tex. 139, 229 S.W.2d 357.

In the case at bar, the trial court as trier of fact had the right under this record to consider all the surrounding facts and circumstances presented, including the size and arrangement of the store, the volume of customers in the store at the time in question, the frequency with which the area of the store was used in which Plaintiff slipped and fell, the number and proximity of Defendant's employees in the vicinity of the accident, at and immediately prior to the accident, the act of the employees in getting rid of the onion top so that it would not be available to Plaintiff as evidence, the fact that no employee of Defendant was cleaning up the floor at any time material to this incident, the fact that the store manager was not around at the time and place of the accident, as well as any and all other facts presented. See R. E. Cox Dry Goods Co. v. Kellog (Waco Tex.Civ.App.1940),145 S.W.2d 675, writ refused; H. E. Butt Grocery Co. v. Johnson (San Antonio Tex.Civ.App.1949), 226 S.W.2d 501, error refused NRE; S. H. Kress & Co. v. Selph (Beaumont Tex.Civ.App.1952), 250 S.W.2d 883, error refused NRE.

Among the above-stated facts and circumstances surrounding this accident, it is significant that the Defendant's employees deliberately 'got rid' of the onion stalk upon which Mrs. Bruner slipped and fell. Mrs. Bruner testified that the stalk was 'long and juicy,' and looked like it had been 'stepped on and mashed.' The onion stalk was last known to have been in possession of Defendant's employees, was not produced in court, nor did Defendant offer any explanation for the intentional and deliberate spoliation of this vital piece of evidence. Since the onion stalk was described by Plaintiff as 'long and juicy,' and looked like it had been 'stepped on and mashed,' the question naturally arises: was it stepped on and mashed only by Plaintiff (in which event it may have been on the floor a very short time) or was it stepped on and mashed by one or more people in addition to Plaintiff (in which event it may well have been on the floor for a sufficient period of time in which Defendant by the exercise of ordinary diligence should have discovered and removed it)?

Had the onion stalk been available as evidence and produced in court, this question might have been answered. Since the onion stalk was 'gotten rid of' by Defendant, with no explanations given therefor by Defendant, certain rules of law come into play:

Failure to produce evidence within a party's control raises the presumption that if produced it would operate against him, and every intendment will be in favor of the opposite party. The force of evidence is greatly increased by the failure of the opposite party to rebut it, where it is obvious that the means are readily accessible to him. Galveston, H. & S.A. Ry. v. Young (1907), 45 Tex.Civ.App., 100 S.W. 993, writ refused; Lindsey v. State (Eastland Tex.Civ.App.1946), 194 S.W.2d 413, error refused NRE; King Construction Co. v. Flores (Houston Tex.Civ.App. 1st 1962), 359 S.W.2d 919, error refused NRE; Fain v. Beaver (Waco Tex.Civ.App.1972), 478 S.W.2d 816, error refused NRE.

Our Supreme Court states the rule in this way: Where a party is in possession of evidence and does not testify, the trial court is authorized to take such failure to testify into consideration 'not only as strengthening the probative force of the testimony offered to establish the issue, but (such failure) is of itself clothed with some probative force.' State v. Gray (1943), 141 Tex. 604, 175 S.W.2d 224. Likewise, the following authorities stand for the proposition that such failure of a party to testify or to produce evidence creates a presumption unfavorable to such party which of itself has probative force: English Freight Co. v. Knox (Austin Tex.Civ.App.1944), 180 S.W.2d 633, error refused W.M.; Union Transports Inc. v. Braun (Eastland Tex.Civ.App.1958), 318 S.W.2d 927, no writ history; De Muth v. Head (Dallas Tex.Civ.App.1964), 378 S.W.2d 389, error refused NRE. Such a presumption is not evidence, but rather a rule of procedure or an 'administrative assumption' which 'vanishes' or is 'put to flight' when positive evidence is introduced. It is not evidence and when met by rebutting proof it is not to be weighed or treated as evidence by the trier of fact. Empire Gas & Fuel Co. v. Muegge (1940), 135 Tex. 520, 143 S.W.2d 763, opinion adopted. Such a presumption when unrebutted, as in the case at bar, may fully establish a fact in issue, not as evidence, but as an artificial legal equivalent of the evidence otherwise necessary to do so. Strain v. Martin (Eastland Tex.Civ.App.1944), 183 S.W.2d 246, no writ history; 23 Tex.Jur.2d, 'Evidence', par. 66, pp. 104, 105.

A kindred rule to the foregoing, applicable to the case at bar, is that the intentional spoliation or destruction of evidence relevant to a case raises a presumption that the evidence would have been unfavorable the cause of the spoliator. McCormick and Ray, Texas Evidence (Second Edition), Vol. 1, Section 103, pp. 141, 142. The deliberate destruction of evidence gives rise to the presumption that the matter destroyed is not favorable to the spoliator, and it has been held that where a deed is shown to have been intentionally destroyed, the party relying on it was required to rebut all inferences of fraudulent intent or purpose before secondary evidence was admissible. Massie v. Hutcheson (1925), 110 Tex. 558, 270 S.W. 544, opinion adopted.

Applying the foregoing rules to the case at bar, the following conclusions are in our opinion inescapable:

The intentional spoliation and destruction of the onion stalk created the presumption that its introduction into evidence would have been unfavorable to Defendant, that is to say, that it would have shown that it was sufficiently 'stepped on and mashed' as to lead to the conclusion that it had lain on the floor for a sufficient period of time that the Defendant should have, by the exercise of reasonable diligence, discovered and removed it. Since this presumption was not rebutted by the Defendant, the trial court was authorized to take such presumption into consideration, not only as strengthening the testimony offered by Plaintiff, but also he was authorized to consider that such presumption in and of itself had probative value. This presumption, when taken together with all the other facts and circumstances presented by Plaintiff's testimony as...