Hesse v. Mittleman

Decision Date02 January 1934
PartiesHESSE v. MITTLEMAN.
CourtOregon Supreme Court

Department 1.

Appeal from Circuit Court, Multnomah county; W. A. Ekwall, Judge.

Action by Thelma Hesse against Harry Mittleman. Judgment for plaintiff, and defendant appeals.

Affirmed.

J. A Powers, of Portland (Senn & Recken and W. E. Cameron, all of Portland, on the brief), for appellant.

Alfred P. Kelley, of Portland (Teal, Winfree, McCulloch & Shuler, of Portland, on the brief), for respondent.

KELLY, Justice.

From the 1st day of July, 1931, until February, 1932, plaintiff with her husband and infant child, was a tenant occupying a suite on the fifth floor of defendant's apartment building. At about 7 o'clock Saturday morning, September 26, 1931, plaintiff left her apartment, went to the laundry room which was on the first floor of the building, finished her baby's laundry, and started to return to her quarters on the fifth floor. In attempting to return and, while crossing the lobby on the first floor, when plaintiff had come to a point about halfway across the lobby, she slipped her feet went out from under her, and she fell on her back sustaining personal injury.

Each Saturday the tile floor of the lobby received an application of liquid veneer and kerosene for the purpose of cleaning it and making it appear attractive. That morning the janitor had applied such liquid to the portion of the floor where plaintiff fell, and was in the course of making such an application to the floor just outside of the lobby when plaintiff fell. The record discloses that there was some oil in the liquid veneer thus applied. These applications to the floor of this liquid were made under the direction of the manager of the building.

The charge of negligence alleged in plaintiff's complaint is that defendant, through and by his agents and employees failed to exercise reasonable care in applying said oily, slippery, liquid substance or material to the surface of said floor, and failed to exercise reasonable care in the maintenance of said floor after the application of said liquid substance thereto, but allowed said floor to remain in a slippery, hazardous, and unsafe condition.

Error is predicated upon the refusal of the trial court to grant a nonsuit. It is urged by defendant that plaintiff did not submit sufficient evidence of negligence on the part of defendant to entitle the case to go to the jury, and that the testimony does not show that the defendant was in any way guilty of negligence, which was the proximate cause of plaintiff slipping and falling.

Plaintiff testified that, as she approached the place where she fell, she observed that the floor appeared to be shiny, and that after her fall she found that the pink Hoover apron, which she was wearing when she fell, was splotched with oil, especially through the shoulders and the lower part of the body. Plaintiff also testified that when she fell her shoulders hit the tile.

We think that the jury were warranted in inferring from these facts that an excess amount of the liquid floor dressing had been applied to the tile floor and had been permitted to remain where plaintiff fell. The suggestion is made that defendant was not charged with knowledge of such a fact. This suggestion is not tenable, because it was through the action of defendant's agents and employees in pursuing the customary, usual, and ordered method of treating the floor that the condition thereof occurred.

It is urged that, in order to sustain the verdict, we must approve the basing of an inference upon an inference, in that we must infer that there were no splotches of oil on the apron before plaintiff fell and also infer that the splotches found thereupon came from the contact of the apron with the floor.

Plaintiff in answer to the question, "Had there been any oil on those clothes before you fell?" said: "Not that I know of."

The jury had the advantage of seeing plaintiff while she was testifying, and doubtless concluded that, if splotches of oil had been upon the shoulders and lower part of plaintiff's apron before she fell, she would have known it. That inference could be based upon plaintiff's appearance, manner, and personality and not upon any inference. Thus based, it becomes a fact, and is no longer a mere...

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10 cases
  • Hamilton v. Union Oil Co.
    • United States
    • Supreme Court of Oregon
    • 13. Mai 1959
    ...141; Briggs v. John Yeon Co., 168 Or. 239, 251, 122 P.2d 444; Saunders v. A. M. Williams & Co., 155 Or. 1, 62 P.2d 260; Hesse v. Mittleman, 145 Or. 421, 423, 27 P.2d 1022. The argument here is that the defendant must have tracked grease from the grease rack, where he sometimes worked, acros......
  • Lyons v. Lich
    • United States
    • Supreme Court of Oregon
    • 23. Januar 1934
    ...negligence from his nonaction if the substance is not discernible to the invitees by the exercise of reasonable alertness. Hesse v. Mittleman (Or.) 27 P.2d 1022; Hovedsgaard v. Grand Rapids Store & Equip. 138 Or. 39, 5 P.2d 86; Brown v. Holzwasser, Inc., 108 Cal.App. 483, 291 P. 661; Willia......
  • Briggs v. John Yeon Co.
    • United States
    • Supreme Court of Oregon
    • 25. Februar 1942
    ...was caused by oil which had accumulated in worn places in the floor, there being nothing to show when the floors were oiled; and in Hesse v. Mittleman, supra, where the only evidence that the defendant was negligent in cleaning the lobby floor of its apartment house with liquid veneer and k......
  • Frangos v. Edmunds
    • United States
    • Supreme Court of Oregon
    • 22. Oktober 1946
    ...general principle of law that it is not error alone, but error legally objected to that constitutes ground for reversal. Hesse v. Mittleman, 145 Or. 421, 27 P. (2d) 1022; Porter Construction Co. v. Berry, 136 Or. 80, 298 P. 179; Kelley v. Stout Lumber Co., 123 Or. 647, 263 P. 881; McIntosh ......
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