Herrick v. Breier

• Decision Date: 19 July 1938
• Docket Number: 6534
• Citation: 82 P.2d 90,59 Idaho 171
• Parties: CHARLES B. HERRICK and MARGARET J. HERRICK, Husband and Wife, Respondents, v. C. J. BREIER, Sr., Appellant
• Court: Idaho Supreme Court

82 P.2d 90

59 Idaho 171

CHARLES B. HERRICK and MARGARET J. HERRICK, Husband and Wife, Respondents, v. C. J. BREIER, Sr., Appellant

No. 6534

Supreme Court of Idaho

July 19, 1938

APPEAL AND ERROR - TRANSCRIPT, SUFFICIENCY OF - ASSIGNMENTS OF ERROR - NEGLIGENCE-UNSAFE PREMISES-FALL OF PERSON-EVIDENCE.

1. A transcript made pursuant to an order to prepare complete transcript of all the testimony, which was duly certified as true and correct, authorized review of sufficiency of evidence to sustain verdict though motions for directed verdict or new trial were not made. (I. C. A., sec 7-509.)

2. Assignments of error in appellant's brief which detailed the particulars in which evidence was allegedly insufficient to support verdict, and when taken in connection with the entire brief left no doubt of what questions were urged, were sufficient.

3. In action against owner of building for injuries to woman who fell on floor, evidence indicating that woman actually fell while walking upon the floor, and that fluid used in cleaning floor could possibly be used to excess, did not authorize verdict for plaintiffs where undisputed evidence showed that floor was actually clean and well cared for.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action for personal injuries. Judgment for respondents, plaintiffs below, and appellant appeals. Reversed.

Judgment reversed with directions. Costs to appellant. Petition for rehearing denied.

Cox Ware & Stellmon and Earle W. Morgan, for Appellant.

There is no presumption of negligence from the mere fact that a person sustains a fall while in a building, as the doctrine of res ipsa loquitur is not applicable. (Knopp v. Kemp &amp Hebert, (1938) 193 Wash. 160, 74 P.2d 924; Tenbrink v. F. W. Woolworth Co., (R. I. 1931) 153 A. 245; Garland v. Furst Store, (1919) 93 N.J.L. 127, 107 A. 38, 5 A.L.R. 275; Faubert v. Shartenberg's, Inc., (R. I. 1937) 195 A. 218.)

P. E. Stookey and Benjamin F. Tweedy, for Respondents.

The proof that a floor is slippery and dangerous is proof that the inviter was negligent or has negligently or carelessly applied the thing to the floor that made it slippery and dangerous, and carries the case to the jury. (Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P.2d 820.)

This is a sensible and reasonable rule of law and of evidence; and there is no ground on which the Idaho court can refuse to follow it, since the Kansas Supreme Court, in adopting it, cited the cases relied on by appellant and refused to follow the rule of law and of evidence these cases enforced against the invitee.

Sustaining the Walker case, and, as a guide for a correct conclusion in the case at bar, we cite: (Dow v. Oroville, 22 Cal.App. 215, 134 P. 197-200; State v. Silver Bow Ref. Co., 78 Mont. 1, 252 P. 301-306; Brown v. Holzwasser, Inc., 108 Cal.App. 483, 291 P. 661; John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974-976, 977.)

GIVENS, J. Holden, C. J., and Morgan and Budge, JJ., concur. Ailshie, J., did not participate in the decision of this case.

OPINION

GIVENS, J.

Mrs. Margaret J. Herrick, one of respondents herein, on December 31, 1936, at 11 A. M., entered the Breier Building in Lewiston, took the elevator to the fifth floor and starting along the hall toward Dr. Briley's office, some 36 feet from the elevator, slipped and fell causing a fracture of her left wrist and femur and three ribs, and she and her husband sued herein to, and did, recover damages therefor from appellant, owner of the building.

It is contended appellant may not question the sufficiency of the evidence to sustain the verdict for the reason that no motion for directed verdict or new trial was made.

Section 7-509, I. C. A., provides that a transcript complying therewith shall "be deemed adequate to present for review any ruling appearing therein to have been excepted to, or by statute deemed excepted to, or any question of insufficiency of evidence which may afterward be properly presented by specification of insufficiency in the brief on appeal." Section 7-502, I. C. A., specifically provides that the verdict of the jury and final decision are deemed excepted to. This question was before the Supreme Court in Buster v. Fletcher, 22 Idaho 172, 179, 125 P. 226, where it was held:

"Such transcript (as provided for in 7-509, I. C. A.) may be used either on an appeal from the final judgment, as provided for by section 4818 (now 11-212, I. C. A.), or on an appeal from an order denying a new trial; and if used on appeal from a final judgment, such transcript has the force and effect of a bill of exceptions duly settled and allowed and is adequate and sufficient to present for review on such appeal any ruling appearing therein to have been excepted to, or by the statute deemed excepted to or any question of insufficiency of evidence which may afterward be properly presented by specification of insufficiency in the brief on appeal.

"We therefore conclude that on an appeal from a final judgment, if the appellant furnishes the appellate court with a copy of the notice of appeal, of the judgment-roll provided by sec. 4434 (7-509, I. C. A.), and the question of insufficiency of the evidence is properly presented by specification of such insufficiency in the brief on appeal, the appellate court has full and sufficient power and authority to determine whether the evidence is sufficient to support the findings of the verdict." (Emphasis ours.)

To the same effect, see, Newport Water Company v. Kellogg, 31 Idaho 574, 578, 174 P. 602; Marnella v. Froman, 35 Idaho 21, 25, 204 P. 202; McKinlay v. Javan Mines Co., 42 Idaho 770, 774, 248 P. 473; Morton v. Morton Realty Co., 41 Idaho 729, 241 P. 1014.

The transcript herein contains the trial judge's order to the official reporter to prepare "a complete transcript of all the testimony and proceedings had before me in the above entitled cause in accordance with law and in accordance with the rules of the Supreme Court of the State of Idaho." The clerk's certificate certifies that the transcript "is a true and correct transcript of the proceedings therein contained," and thus, with the reporter's certificate, meets the requirements of the statute.

The "assignments of error" in the appeal brief are:

"The verdict in favor of the respondents is contrary to law and against the evidence for the reason that the evidence does not establish any negligence upon the part of the appellant which would render the appellant liable for the injuries sustained by the respondent, Margaret Herrick, the evidence being insufficient and inadequate to sustain the verdict for the following reasons:

"(a) The undisputed evidence shows that the floor on which the respondent fell was of flooring in common use.

"(b) The undisputed evidence shows that the preparations used in treating and caring for the floor were preparations prescribed and recommended by the company and was the method in general use.

"(c) The evidence fails absolutely to show that the floor was of unusual or extraordinary composition.

"(d) The evidence introduced by the respondent fails utterly to show that there was any water, snow, ice, oil, wax, grease or other material negligently left by the appellant or permitted by the appellant on the floor.

"(f) The evidence conclusively shows that the respondent was thoroughly acquainted and familiar with the floor and that its condition was known and obvious to her at the time of the accident.

"(g) The undisputed evidence shows that the floor has been used for 15 years prior to the accident without anyone having fallen thereon.

"(h) The evidence fails to show any notice to the appellant of these alleged dangerous conditions of the floor."

They point out in detail the particulars in which it is claimed the evidence is insufficient to support the verdict and when taken in connection with the entire brief leave no doubt as to what questions are urged on appeal, and are, therefore, sufficient. (Hoy v. Anderson, 39 Idaho 430, 431, 439, 227 P. 1058; Marnella v. Froman, supra; Thibadeau v. Clarinda Copper Min. Co., 47 Idaho 119, 126, 272 P. 254.)

The complaint alleges:

" . . . . The floors of each of said halls or vestibules (i. e. of the Breier Building) are made of an extraordinarily unusual composition and have surfaces when polished as hereinafter stated, on which to walk of extraordinarily unusual smoothness, slickness and slipperiness making them extraordinarily and unusually unsafe and dangerous to walk over or upon. . . ."

This is the basic and only ground of negligence.

The testimony of Mrs. Herrick is that there was snow on the streets and it was storming at the time the accident occurred, but there is no evidence that the fifth floor of the building was wet, or that the accident was caused by the presence of any foreign substance such as dirt or excessive oil or wax on the floor. Appellant's evidence that the floor was clean and well cared for is undisputed and leaves nothing from which the jury was justified in inferring that the cleaning was carelessly done or that an excessive amount of cleaning compound was used on the morning of the accident.

The only evidence as to the composition of the flooring was given by the witness Henry Hostetler, who was in the business of selling and laying such floors, including the floor in question, and testified in part as follows:

"Q. What kind of flooring is the floor of the Breier Building? I am referring particularly to the fifth floor of the building.

"A. Well, it is a magnesite composition flooring. Magnesite is made from rock that comes from Chewela, and it is what they call composition, and we add asbestos and different ingredients to make it a...