H. E. Butt Grocery Co. v. Johnson

• Decision Date: 23 November 1949
• Docket Number: No. 11982,11982
• Citation: 226 S.W.2d 501
• Parties: H. E. BUTT GROCERY CO. v. JOHNSON et vir.
• Court: Texas Court of Appeals

Page 501

226 S.W.2d 501

H. E. BUTT GROCERY CO. v. JOHNSON et vir.

No. 11982.

Court of Civil Appeals of Texas, San Antonio.

Nov. 23, 1949.

Rehearing Denied Dec. 28, 1949.

Clinton G. Brown, Jr., San Antonio, Grady Barrett, San Antonio, Brewer, Matthews, Nowlin & Macfarlane, San Antonio, for appellant.

Oliver & Peace, San Antonio, Harry B. Berry, San Antonio, for appellees.

NORVELL, Justice.

On the afternoon of July 2, 1947, Mary Johnson, the wife of John W. Johnson, slipped and fell upon the floor of H. E. B. Store No. 5, located at 2110 Fredericksburg Road, in San Antonio, Texas. Mrs. Johnson suffered severe personal injuries and with the joinder of her husband brought suit against the appellant, H. E. Butt Grocery Company, the operator of the store, contending that her injuries were caused by the appellant's negligence. The trial judge submitted the case upon 32 special issues, and, based upon the jury's answers thereto, rendered judgment against the appellant for $15,000.00.

As we see the case, there are two main questions raised: Is the evidence sufficient to take the case to the jury? And, if so, was the case properly submitted to the jury?

Mrs. Johnson's fall, according to her testimony and that of her witnesses, was caused by the presence of a liquid upon the floor, probably the contents of a broken Coca Cola or pop bottle. There seems to be no disagreement between the parties as to the rule of liability when injury is caused by a foreign substance upon a floor which rendered it slippery or unsafe for use. In order to establish liability against the defendant operator of the store it is necessary to show:

1. That the defendant put the foreign substance upon the floor, or,

2. That the defendant knew the foreign substance was on the floor and wilfully or negligently failed to remove it, or

3. That the foreign substance had been upon the floor for such a period of time that it would have been discovered and removed by the defendant, had the defendant exercised ordinary care.

See Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Woolworth v. Goldston, Tex.Civ.App., 155 S.W.2d 830; Great Atlantic & Pacific Tea Co. v. Logan, Tex.Civ.App., 33 S.W.2d 470.

The case was submitted to the jury upon the third theory above set out. There was dispute as to whether or not there was any water or other liquid upon the floor, but in determining the sufficiency of the evidence to take the case to the jury, we must accept the testimony favoring the prevailing party below.

It appears that a number of display counters for breads, candies, pastries and similar merchandise were placed in a lane parallel with and about six feet distant from the south wall of the store. Situated between two of these counters was an ice box containing bottles of soft drinks. The box was about three feet wide, six feet long and four feet high. It was painted red and carried a large Coca-Cola advertisement. This Coca-Cola box was near the middle of the row of display counters and about 35 or 40 feet from one of the store's exits. Large windows were set in the wall back of the counters, and between these windows and the counters was an aisle about six feet wide for the use of appellant's clerks and employees.

One of appellant's employees was on duty near the Coca-Cola box and could see the floor near the box most of the time. A porter was also employed to clean the floor when water was spilled or vegetables, fruits and other substances were dropped upon it. The floor was constructed of a composition material known as 'Terrazo.' The exit near the Coca-Cola box was one commonly and frequently used by customers of the store, and it was convenient for them to pass by the Coca-Cola box on their way out and this probably accounts for its location. The place in front of the box where customers would stand to receive their soft drinks and perhaps drink them would naturally be a place where water would accumulate and the contents of bottles would probably be spilled.

According to Mrs. Johnson and her witnesses, there was a wet place in front of the box 'about as big as the box,' at the time she fell. There were also pieces of a broken bottle upon the floor, which raises an inference that the wetness of the floor was caused by someone dropping and breaking a bottle. Mrs. Johnson testified that the wet spot on the floor was partially obscured by a shadow cast by the box itself. She further stated that the wet spot was sticky, wet and muddy. In this she was corroborated by other witnesses, who testified that when Mrs. Johnson was helped from the floor her dress was muddy and that the wet spot itself was dusty, grimy and muddy. From this testimony, the inference can properly be drawn that a liquid, either water or the contents of a soft drink bottle, had been allowed to remain upon the floor for some length of time.

We are of the opinion that the evidence was sufficient to take the case to the jury. In determining the question, due consideration must be given to the elements of time and place. While a storekeeper is not an insurer of the safety of his invitees, he is, nevertheless, under a duty to maintain his premises in a reasonably safe condition. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This Coca-Cola box was placed near a busy exit of the store building. Numerous people would pass in front of it and probably desire to stop and partake of a cold drink before leaving the store. The serving of cold drinks generally brings with it wet spots and liquids upon the floor. Ordinary care requires that such a place be constantly watched and excess liquids removed from the floor frequently. Considering the position of the Coca-Cola box and the fact that appellant's employees were stationed near the box, the failure to discover the presence of water or other liquid on the floor near the box for a comparatively short period of time might properly be considered as substandard conduct by a jury, especially in view of the fact that the presence of such liquids on the floor near the box must be considered as usual and to be expected.

In addition to the above, Mary Johnson's husband testified that shortly after the accident occurred, appellant's manager stated that, 'I thought that had been taken care of.' This testimony, although contradicted, was admissible as it tends to support the theory that the manager had notice of some dangerous condition at or near the location of the Coca-Cola box, and constitutes an additional circumstance which may be properly considered in determining whether or not judgment for the appellant should have been rendered as a matter of law.

After a careful review of the evidence in the light of the applicable rules of law, we are of the opinion that the case was one for the jury. Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625; Foley v. F. W. Woolworth Co., 293 Mass. 232, 199 N.E. 739; Louie v. Hagstrom's Food Stores, Inc., 81 Cal.App.2d 601, 184 P.2d 708.

We next consider the contention that the case was improperly submitted to the jury. The theory of recovery submitted on behalf of appellees has been mentioned. In addition to a general denial, the appellant pleaded affirmatively two defenses only. These were the failure of Mary Johnson to keep a proper lookout and unavoidable accident. It was not necessary to employ 31 questions to submit the controlling issues relating to liability. (Special Issue No. 32 inquired as to the amount of damages.) Numerous evidentiary and immaterial issues were admittedly submitted.

However, in the recent case of Fisher v. Leach, 221 S.W.2d 384, this Court held that the submission of an immaterial issue does not ordinarily constitute reversible error. We said, 221 S.W.2d 390, 'There is nothing inherently prejudicial in submitting an immaterial issue or one concerning which there is no conflict or dispute in the evidence. While under certain circumstances the submission of such issues may result in prejudice and a reversal of the judgment, this result does not necessarily follow in all cases. We are of the opinion that Rule 434, R.C.P., is applicable to the situation and a reversal should not be ordered unless it appears that the submission of the unnecessary issue 'amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. '' See also, Texas & New Orleans Ry. Co. v. Rooks, Tex.Com.App., 292 S.W. 536; International & Great Northern Ry. Co. v. Walters, Tex.Civ.App., 165 S.W. 525, affirmed 107 Tex. 373, 179 S.W. 854; 41 Tex.Jur. 1021, § 225

It does not follow that in every case the submission of immaterial, evidentiary or undisputed issues may be regarded as mere harmless error. In the case of Turner v. Missouri, Kansas & Texas Ry. Co., 177 S.W. 204, 208, this Court said:

'Assignments 17 to 25 inclusive, respectively complain of the submission of special issues A, B, C, D, E, F, G, and H. All of these issues should not have been submitted. They related to merely evidentiary matters, most of which were undisputed, and some were admitted in the sworn pleadings of both parties. To ask the jury to go out and seriously deliberate on the question whether Turner would have been injured if he had stayed where he was when he saw or heard the train approach, served no useful purpose, to say the least. The assignments are sustained.

'By the twenty-sixth assignment complaint is made of the submission of special issue J, which was objected to on several grounds, one of which was that it failed to inquire whether Turner's acts constituted negligence. The objections to these issues are so obviously good that it is unnecessary to discuss them. Questions which serve no useful purpose should not be submitted as they only tend to confuse and mislead the jury. The assignment is sustained.'

The judgment of the trial court in the Turner case was reversed...