Isaacs v. American Petrofina

• Decision Date: 07 November 1966
• Docket Number: No. 23177.,23177.
• Citation: 368 F.2d 193
• Parties: Elmer H. ISAACS, Appellant, v. AMERICAN PETROFINA and Glen Mitchell, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 193 (1966)

Elmer H. ISAACS, Appellant, v. AMERICAN PETROFINA and Glen Mitchell, Appellees.

No. 23177.

United States Court of Appeals Fifth Circuit.

November 7, 1966.

Warren Burnett, Robert D. Pue, Odessa, Tex., for appellant.

Marvin S. Sprain, Hugh F. Rives, Jr., J. M. Lee, McMahon, Smart, Sprain, Wilson & Camp, Abilene, Tex., for appellees.

Before JONES and COLEMAN, Circuit Judges, and JOHNSON, District Judge.

COLEMAN, Circuit Judge:

This is another diversity case, whose number is legion, in which a federal court, with an eye on Erie Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, must attempt to fathom, until the State Court says otherwise, a question of state law. The suit was for personal injuries suffered by a business invitee in a fall in a gasoline service station. Trial began to a jury. Defendant was granted a directed verdict at the close of plaintiff's proof. We reverse and remand for a new trial.

The Plaintiff, Isaacs, was driving through Texas with Mr. Carrell Cone on a business trip. Cone owned the car and was doing the driving. At about 7:00 P.M., while it was still daylight, they stopped at a gasoline station in Cisco, Texas, to buy gas and use the rest room. The station was on the left side of the highway, and Cone pulled in on the highway side of the gas pumps so that the door on the driver's side of the car was next to the pumps. Isaacs got out on the passenger side of the car, walked around the front of the car, and went into the station. He went to the rest room, paid for the gas, and returned to the passenger side of the car, approaching from the rear. As he reached for the handle of the car door, Isaacs stepped in a strip of light colored oil, three inches wide and three feet long. He slipped and fell. He was stunned by the fall and could not remember how he fell, but there was evidence that he fell on his back. Injuries occurred to wrist and neck.

Cone and Isaacs testified that the oil was located near the rear wheel of the car, the streak extending toward the highway. Cone stated that he checked his car, and the oil had not come from it. Cone and Isaacs had purchased no oil.

At the time of the accident the attendant was fooling with the coke machine, Cone and Isaacs drove on without actually reporting the incident to him, but both men testified that he cleaned up the oil streak before they left the station. Cone's car had remained at the gas pumps for about twenty minutes before the fall occurred, and no other cars had come into the station during that time.

It was developed at trial that it was the duty of the station attendant to check after servicing each car to see if any oil had dripped on the pavement while oil was being put into the car or from a leak. A cleaning compound especially made for removing oil from pavement was kept at the station.

Isaacs testified that he did not see the oil before he stepped in it because he was looking at the car door rather than at the ground. There was evidence that the oil was difficult to see because it was unused, new oil, light in color, lying on a light colored pavement.

Isaacs, a used car salesman, introduced into evidence his record of earnings since the accident, but he presented nothing concerning his prior employment except that he had held a steady job selling cars for about a year. He filed no income tax returns in 1961, 1962, or 1963. He testified that he had had to visit several doctors over a period of about one year for treatment of his wrist and neck injuries. His wrist was in a cast for about one month and in a splint for about one and one-half months. No doctor testified concerning Isaacs' injuries, but Isaacs stated and demonstrated that he did not yet have full use of his injured arm. He also indicated that he still was taking medication for pain connected with his neck injury. There was no evidence as to the cost of Isaacs' medical care.

The grounds asserted by defendant in support of the directed verdict, in summary, were:

(1) No liability for the kind of substance on the driveway;

(2) Evidence establishes that the substance was on the driveway but not that it had been there for a sufficient time to have been discovered by the exercise of due care and removed by the defendant;

(3) The substance was so open and obvious that the defendant had no duty to warn the plaintiff (4) No competent evidence of damages.

In response to inquiry from plaintiff's counsel, the Court declined to state the particular ground on which the motion was granted. The record reveals, however, that when he later explained to the jury why they were being relieved of further consideration of the case he dwelt exclusively and with some elaboration on the third point, that the danger was so open and obvious there was no duty to warn appellant.

We accept as correct the following statements of appellee as to the Texas law:

"* * * in a slip and fall case the plaintiff must prove one of the following: (1) that the defendant placed the foreign substance on the floor; (2) that it knew that the foreign substance was on the floor and negligently failed to remove it; or (3) that it had been on the floor for such a period of time that it would have been discovered and removed by the defendant in the exercise of ordinary care, citing H. E. Butt Grocery Co. v. Russell, Tex.Civ.App., 391 S.W. 2d 571, n.r.e. (1965); Great Atlantic & Pacific Tea Co. v. Giles, Tex.Civ. App., 354 S.W.2d 410, writ refused, n.r.e. (1962); Sherwood v. Medical & Surgical Group, Tex.Civ.App., 334 S.W.2d 520, writ refused (1960); H. E. Butt Grocery Co. v. Johnson, Tex. Civ.App., 226 S.W.2d 501, writ refused, n.r.e. (1949)."

We likewise note the holding of the Supreme Court of Texas in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (1963):

"If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees knows, or of which they are charged with knowledge, then the occupier owes them `no duty\' to warn or to protect the invitees. This is so, the cases say, because there is `no duty\' to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof."

We accept as correct the following contentions of plaintiff:

"The quantity and quality of proof necessary to make out a case for submission to a jury in a federal court are determined by the Seventh Amendment to the Constitution of the United

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