Itt Continental Baking Co. v. Ellison

• Decision Date: 15 March 1977
• Docket Number: No. 9748.,No. 9855.,9748.,9855.
• Citation: 370 A.2d 1353
• Parties: ITT CONTINENTAL BAKING COMPANY, Appellant, v. Julia O. ELLISON, and Safeway Food Stores, Inc., Appellees. SAFEWAY FOOD STORES, INC., Appellant, v. ITT CONTINENTAL BAKING COMPANY, and Julia O. Ellison, Appellees.
• Court: D.C. Court of Appeals

370 A.2d 1353

ITT CONTINENTAL BAKING COMPANY, Appellant, v. Julia O. ELLISON, and Safeway Food Stores, Inc., Appellees.

SAFEWAY FOOD STORES, INC., Appellant, v. ITT CONTINENTAL BAKING COMPANY, and Julia O. Ellison, Appellees.

No. 9748.

No. 9855.

District of Columbia Court of Appeals.

Argued October 6, 1976.

Decided March 15, 1977.

Reid C. Tait, Washington, D. C., with whom James C. Gregg and Hugh Lynch, Jr., Washington, D. C., were on the brief, for ITT Continental Baking Co., appellant in No. 9748 and appellee in No. 9855.

Richard W. Boone, Washington, D. C., with whom Edward J. Lopata, Washington, D. C., was on the brief, for Safeway Food Stores, Inc., appellee in No. 9748 and appellant in No. 9855.

Alvin L. Newmyer, Jr., Washington, D. C., for appellee Ellison.

Before KELLY, FICKLING^* and NEBEKER, Associate Judges.

PER CURIAM:

In a jury trial, appellee Julia Ellison was awarded the sum of $12,000 compensatory damages plus costs jointly and severally against Safeway Food Stores, Inc., and ITT Continental Baking Company (hereafter, Safeway and ITT). Both Safeway and ITT are appealing that judgment.

The facts in the case are relatively simple. On July 12, 1973, Mrs. Ellison and her daughter were shopping in a Safeway store located in the District of Columbia. Mrs. Ellison separated from her daughter to look for some crackers. As she turned a corner and began to walk down one of the aisles in the store, her feet struck, and became entangled with, several metal trays that were lying near the end of the aisle, protruding into the walkway. Mrs. Ellison testified that she had not seen the trays prior to her fall. Her daughter testified that when she found her mother lying on the floor of the store, one of the trays was on top of her mother's feet.

Mr. Wheeler, the manager of the store, filled out an accident report wherein he stated that the accident occurred at 4:30 p. m.,¹ and that Mrs. Ellison had fallen over two trays left in the aisle by Mr. Proctor, the ITT deliveryman, "minutes before."

The trays in question were made of heavy metal wire and were variously described in the record before us as being between 2" and 6½" in height. Mr. Wheeler testified during the trial that Mr. Proctor had forgotten to remove the trays "many times," and that the deliveryman had been reprimanded previously by Safeway for this practice. Later in his testimony, however, Mr. Wheeler retrenched somewhat and said that trays had been left in the aisles only "once or twice" before.

After her fall, Mrs. Ellison was taken by ambulance to the Washington Hospital Center for emergency treatment. Since that time, she has been treated periodically for recurring pains in her back and legs. Although she had a previous history of heart trouble, Mrs. Ellison testified at trial that it was as a result of these injuries that she had been unable to continue working since the accident.

Safeway and ITT rely principally on three contentions before this court: (1) such evidence as was properly admitted was insufficient to support the finding of negligence and the $12,000 judgment against each of them; (2) the trial court erred in refusing to instruct the jury regarding Mrs. Ellison's alleged contributory negligence; and (3) the trial court also erred in allowing the jury to weigh what effect the fall might have had in aggravating Mrs. Ellison's preexisting physical conditions. We disagree with each of these contentions, and affirm.²

In regard to the first contention, Safeway avers that answers by ITT — in response to one of Mrs. Ellison's interrogatories regarding the time the deliveryman, Mr. Proctor, serviced the store on the day of the accident — should not have been admissible against Safeway to support Mrs. Ellison's argument that Safeway had constructive notice that the trays were in the aisle.³

It is well-settled that while a grocery does not insure the safety of its patrons, it must exercise reasonable care in keeping the premises safe for them. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 119-20, 406 F.2d 653, 655-56 (1968); Fuller v. Giant Food, Inc., 114 U.S.App.D.C. 53, 310 F.2d 858 (1962). In the instant case, to prove that Safeway had breached this duty, it was incumbent upon Mrs. Ellison, as plaintiff below, to prove that the store had either actual or constructive notice that the trays had been left in the aisle.

It should be noted at the outset that, even without the interrogatories in question, the record before us contains ample evidence from which a jury could find such constructive notice. The accident report filled out by Mr. Wheeler, as manager of the store, placed the time of the accident at 4:30 p. m., although he was less certain of the time in his testimony at trial. At the trial, Mr. Wheeler stated that he believed the ITT deliveryman had serviced the store between 2:30 and 3 p. m. on the day of the accident. The deliveryman, Mr. Proctor, also testified at the trial and was subjected to cross-examination by Safeway's counsel. He stated that while he could not remember clearly his activities on the day in question, it was his impression that he serviced the store at 1 p. m., and that only once or twice had he ever serviced the store as late as 4 p. m. Mr. Wheeler admitted that every employee of the store had a duty to keep the aisles clear, and the record shows that the aisles were swept by a Safeway employee just prior to 4:30 p. m. There is also evidence in the record that Safeway knew that on previous occasions the ITT delivery man had neglected to remove his trays after he had re-stocked the bakery goods shelves at the store. Weighing these facts alone, the jury would have been well within its province in concluding that the trays had been in the aisle long enough to put Safeway on constructive notice of their presence there. Safeway Stores, Inc. v. Preston, 106 U.S. App.D.C. 114, 269 F.2d 781 (1959). See also Courtney v. Giant Food, Inc., D.C.App., 221 A.2d 92 (1966); Sears, Roebuck & Co. v. Donovan, D.C.Mun.App., 137 A.2d 716, 719 (1958); Fuller v. Giant Food, Inc., supra.

Safeway, nevertheless, avers that the introduction into evidence of the ITT interrogatory unduly prejudiced its case. We disagree. The interrogatory was answered by Mr. Fryburger, one of Mr. Proctor's supervisors, and stated that deliveries had been made at the Safeway store between 1 and 1:45 p. m. on the day in question.⁴ In view of the fact that this evidence was only corroborative of Mr. Proctor's own testimony at trial, we cannot say that the trial court erred in allowing it to be admitted into evidences.⁵

Under Super.Ct.Civ.R. 33(b), the answers to interrogatories "may be used to the extent permitted by the rules of evidence."⁶ Since the interrogatory was clearly admissible against ITT under the admission exception to the hearsay rule, our question becomes one of whether it was also admissible against ITT's co-defendant, Safeway.

It is a general rule that in a situation where both A and B are co-defendants:

[T]he statements of . . . B do not become receivable as admissions against A merely because B is also a party. In other words, the admissions of one . . . co-defendant are not receivable against another, merely by virtue of his position as a co-party in the litigation. [4 Wigmore, Evidence § 1076 at 115 (3d ed. 1940) (emphasis in original).]

However, the admission of one co-party can be admitted against the other co-party where there is "a privity of obligation or of title" between the two parties. Id. at 115-16. See, e. g., Johns v. Cottom, D.C.App., 284 A.2d 50, 52 n. 3 (1971); Marshall v. Marshall, 55 App.D.C. 173, 176, 3 F.2d 344, 347 (1925); Ben-Tom Supply Co. v. V. N. Green & Co., 338 F.Supp. 59, 64 (S.D.W.Va.1971); McBriety v. Phillips, 180 Md. 569, 26 A.2d 400 (1942); 29 Am.Jur.2d Evidence § 658 (1967). Moreover, it has been recognized that the joint tort-feasor relationship constitutes that type of privity of obligation. See 4 Wigmore, Evidence, supra, § 1079(2) at 134; Hickey v. Anderson, 210 Miss. 455, 49 So.2d 713, 717 (1951). In Johns v. Cottom, supra, Cottom was injured while serving as a pallbearer when one of the handles of the casket he was carrying broke. He sued both the retainer and the wholesaler of the casket. On appeal, the retailer contended that the answer to an interrogatory given by the wholesaler, to the effect that the screws securing the handle of the casket were shorter...